MEDIATION MINDSET by technology dispute mediator Anthony Cerminaro

Getting to No

2008-04-04T09:04:00.003-04:00

"Principled negotiation is a strategy that seeks to move both parties away from polarizing and usually entrenched positions, and into the realm of interests. It asks how both parties can get their interests satisfied while keeping their relationship strong. Negotiating well means neither party need feel cheated, manipulated, or taken advantage of...

"[Autonomy is] one of five "core concerns" Shapiro's research identifies as critical in creating disputes and finding resolution. He defines autonomy as a person's freedom to make decisions for himself.

"The other core concerns are appreciation, or having actions acknowledged; affiliation, being treated as a colleague; status, feeling that others respect one's standing; and having roles and activities that are fulfilling. Cross one of the needs and conflict arises. Respect them, and compromise is around the corner.

"The most important element of effective negotiation is preparation, preparation, preparation... Advises Shapiro: 'Take those core concerns and write them on a piece of paper. Figure out which of them are being violated for you and for the other person.'

Listen First

"'There's a saying among negotiators that whoever talks the most during a negotiation loses,' says Bobby Covic, author of Everything's Negotiable! Being the first one to listen is crucial to building trust. Just getting the listening part of a negotiation right can satisfy many of the core concerns Shapiro cites.

"However, listening—really paying attention to what the other person has to say—is hard. Gregorio Billikopf, a negotiator for the University of California system, offers several good listening practices:

Sit Down...
Find Common Ground
Transition to the problem...
Move In...
Keep Your Cool...
Be Brief...
Avoid Empty Threats...
Get to 'No'
If you never hear "no," when you negotiate, you haven't asked for enough."

Read more in an article from Psychology Today from which the foregoing was excerpted, by following this link: http://psychologytoday.com/articles/index.php?term=pto-4253.html

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Harvard Course in Coping with International Conflict

2008-03-05T09:35:00.000-05:00

The subject matter of this course from the Harvard Negotiation Project is international conflict. Its premise "is that international conflicts are not being handled as well as they might. Nations tend to react to the actions of others, rather than acting purposively to achieve their own ends. They focus on their own choices, instead of the choices of those they are trying to influence.

"The demands of special interests often outweigh the need for coherent policy. More concern is usually given to having the correct attitude toward any given problem and making an elegant statement about it than to bringing about beneficial change.

One reason for this state of affairs is that there is a shortage of systematic theory on how conflicts ought to be handled, and a shortage of skill in bringing theory to bear on practice.

"Because the problem is how we think about and deal with conflict generally -- rather than what we know about specific conflicts -- this course is not primarily concerned with transmitting large amounts of factual information. Instead it seeks to develop in students analytical skills for systematically bringing knowledge to bear on the practical question of "Who should do what tomorrow morning?" Equally important, it seeks to develop the capacity and desire to continue using and improving these skills in the light of future experience."

Course Materials
Syllabus
General Memorandum Concept Exercises
Problem Sets
Case Materials

Checklist for Difficult Conversations

2007-12-04T15:17:00.000-05:00

"Preparing for the Conversation
Before going into the conversation, ask yourself some questions.
1. What is your purpose for having the conversation? What do you hope to accomplish? What would be an ideal outcome?...
2. What assumptions are you making about this person's intentions?...
3. What "buttons" of yours are being pushed?...
4. How is your attitude toward the conversation influencing your perception of it?...
5. Who is the "opponent"? What might he be thinking about this situation?...What are his needs and fears?...Begin to reframe the opponent as a partner.
6. What are your needs and fears? Are there any common concerns? Could there be?
7. How have you contributed to the problem? How has the other person?...

Four Steps to a Successful Outcome
Step #1: Inquiry
Cultivate an attitude of discovery and curiosity...
Step #2: Acknowledgment
Acknowledgment means showing that you've heard and understood...Acknowledgment can be difficult if we associate it with agreement. Keep them separate. My saying, "This sounds really important to you" doesn't mean I'm going to go along with your decision.
Step #3: Advocacy
When you sense that your opponent has expressed all her energy on the topic, it's your turn...
Step #4: Problem-Solving
Now you're ready to begin building solutions...

Practice, Practice, Practice
The art of conversation is like any art—with continued practice, you acquire skill and ease. Here are some additional hints:

A successful outcome will depend on two things: how you are and what you say. How you are (centered, supportive, curious, problem-solving) will greatly influence what you say.

Acknowledge emotional energy—yours and your opponent/partner's—and direct it toward a useful purpose.

Know and return to your purpose at difficult moments.

Don't take verbal attacks personally. Help your opponent/partner come back to center.

Don't assume your opponent/partner can see things from your point of view.

Practice the conversation with a friend before holding the real one.

Mentally rehearse the conversation. See various possibilities and visualize yourself handling them with ease. Envision the outcome you're hoping for..."

Read much more in this excellent article from Pegasus.com from which the foregoing was quoted

Tips on Resolving Conflict

2007-12-03T11:55:00.000-05:00

"Here are a few tips...for resolving conflict in your workplace and professional life:

"Don't be afraid of conflict...because conflict is a part of nature, a part of life...Consider conflict a way of learning to see things more clearly.

"Abandon the concept of winning and losing when faced with conflict. Instead, adopt a strategy of resolution...

"Be flexible...

"Avoid negative or confrontational language...try using positive language that disarms rather than confronts, such as 'I understand your position and...' or 'I can see your point and here is where I'm coming from...'

"Talk through the situation with a neutral party...

"Think of redirecting the energy toward a common target. Look for similarities in your positions rather than focusing on your differences...

Find something to distract you from the conflict...clear your mind, reevaluate your position, and perhaps come back to it with a fresh vision of what needs to be done to resolve the matter."

From the Beliefnet "From the Masters Newsletter

Twelve Conflict Resolution Skills

2007-11-08T21:47:00.000-05:00

CRN explains twelve skills "which may be relevant to solving any conflict. Pick and choose the skill - or skills - appropriate to your particular issue or crisis.Once you achieved some expertise with Conflict Resolution, you will have gained the following learning outcomes:

"1. The win/win approach
Identify attitude shifts to respect all parties' needs.

"2. Creative response
Transform problems into creative opportunities.

"3. Empathy
Develop communication tools to build rapport. Use listening to clarify understanding.

"4. Appropriate assertiveness
Apply strategies to attack the problem not the person.

"5. Co-operative power
Eliminate "power over" to build "power with" others.

"6. Managing emotions
Express fear, anger, hurt and frustration wisely to effect change.

"7. Willingness to Resolve
Name personal issues that cloud the picture.

"8. Mapping the conflict
Define the issues needed to chart common needs and concerns.

"9. Development of options
Design creative solutions together.

"10. Introduction to negotiation
Plan and apply effective strategies to reach agreement.

"11. Introduction to mediation
Help conflicting parties to move towards solutions.

"12. Broadening perspectives
Evaluate the problem in its broader context."

© This CRN material can be freely reproduced provided this copyright notice appears on each page.

Free Courseware from MIT

2007-11-06T09:51:00.000-05:00

MIT OpenCourseWare (OCW) has posted lecture notes and course materials for many of their classes. What a resource! Click for the courses available in Brain and Cognitive Sciences. Sloan School of Management offers many courses, including Game Theory for Managers and Competitive Decision-Making and Negotiation. Doing a search on "mediation" brings up 159 hits for you to explore. A search on "conflict resolution" yields 291 hits. Enjoy mining for mind gold and learning from what you find. Thanks, MIT.

Hat tip to VeraSage.

See this Brains On Purpose™ post for active links

What We Have Here...

2007-10-29T11:39:00.000-04:00

Is a Failure to Communicate:

"Think about the conversations you have throughout the course of any given day. Are all of them productive? If you’re like most people, they’re probably not. Realize that productive communication involves more than just two people talking. Communicating effectively requires planning, concentration, and consideration of others. So whether you need to talk with your spouse, hash out a problem with a friend, or land that next big business deal, here are some tips to add power and productivity to your conversations.

Tip One: Think Before You Speak...
Tip Two: Stop Talking and Listen...
Tip Three: Ask Questions...
Tip Four: Anticipate Distractions
Nothing you do will make others feel more important than giving them your full attention. Conduct your interaction in a quiet, peaceful location with a minimum of distractions. Turn off your pager and cell phone. If there are other conversations or events going on in the same room, ignore them. If an unavoidable interruption occurs, excuse yourself and return as quickly as possible. If you must end the conversation due to an unforeseen crisis, reschedule it for a later time.

Tip Five: Be Mindful of Your Volume and Tone
Your vocal tone gives the listener a snapshot of your feelings. If you want to show respect or affection, soften your tone. If you find yourself feeling impatient or angry during a conversation, listen to yourself to make sure your voice isn’t reflecting those emotions. If a conversation begins to turn into an argument, consciously lower your volume; often your listener will, too. Keep your voice calm and even whenever possible.

Tip Six: Handle Disagreements with Tact...
Tip Seven: Be Open to New Ideas...
Tip Eight: Take Notes...
Tip Nine: Watch Your Body Language...
Tip Ten: Eliminate Audible Pauses
There’s no need to fill every second of a conversation with sound. Verbal fluff (“ah,” “er,” “um,” “like,” “you know”) obscures your message and reduces your credibility. If you feel you are about to use a non-word, take a breath, hold it a moment, and then resume speaking. Use shorter sentences, or pause using silence instead of audible sounds. Becoming very familiar with your topic will help too. Practice what you want to say, but don’t sound rehearsed..."

Read more in this businessknowhow.com article from which the foregoing was quoted

Stop Fighting

2007-09-19T13:45:00.000-04:00

CRInfo has released a new tutorial entitled How to Stop Fighting. Check it out. Preserving your relationships may depend upon it.

Found via this post from campus.adr.net

10 Key Negotiation Lessons

2007-06-24T21:38:00.000-04:00

Dr. David Ventner offers these ten negotiation lessons:

Lesson 1 - Know your Aspiration Base...Negotiators with high aspirations consistently outperform those with low aspirations. They start out as ambitiously as possible, staying just clear of losing credibility. By adopting a high aspiration base, negotiators create sufficient room to make and request the necessary concessions needed to achieve a win more-win more outcome...By making the first offer negotiators can "anchor" the negotiation and thus compel it in that direction...

Lesson 2 -Know your Real Base
As important as it is to develop a high aspiration base, negotiators must also know when to walk away from the negotiation...

Lesson 3 - Know your Best Alternative to a Negotiated Agreement [BATNA]...A BATNA is the best outcome a negotiator can expect if the negotiation results in an impasse. It is, as Fisher and Ury (1981: 104, 111) explain it, "the standard against which any proposed agreement should be measured" as it "determines what a minimally acceptable agreement is" ...

Lesson 4 - Focus on Interests not Positions
Negotiators generally enter a negotiation with predetermined positions underpinned by one or more interests - basic needs, fears, desires, hopes, expectations, etc. Whereas positions represent an approach they have decided to adopt, interests are that which gave rise to their decision to adopt certain positions...

The challenge for negotiators is to look beyond the positions initially communicated and to uncover and explore the interests that gave rise to these positions. Once the parties have explored their respective interests, they very often are able to agree an outcome not initially contemplated by either, but which satisfies their respective interests far better than a long drawn-out test of strength...

Lesson 5 - Check your Assumptions - They tend to be Wrong...

Lesson 6 - Always aspire to joint opportunity finding...not merely...joint problem solving...

Lesson 7 - Negotiation is primarily a process, not an event...it is essential that negotiators at all times remain aware of the impact their negotiation strategies and tactics have on the relationship between the negotiating parties...

Lesson 8 - Information is power in negotiations...

Lesson 9 - Framing is a strong determinant of a negotiation outcome...

Lesson 10 - Trust and Credibility are the cornerstones of Win More! Agreements...

Dispute Resolution Around the Globe

2007-06-17T15:44:00.000-04:00

"How a company handles disputes can have a significant impact on both its financial performance and its reputation. It is also an essential part of good risk management to anticipate disputes by ensuring that appropriate and well-drafted dispute resolution clauses are incorporated in all contracts.

"Baker & McKenzie developed Dispute Resolution Around the World to help organizations engaged in international commerce devise the most effective dispute resolution strategies. This site will help you gain:

-A basic knowledge of the structure of the legal profession and the court system in different countries
-An understanding of the courts’ views of alternative dispute resolution and arbitration, disclosure of documents, how judgments and awards are enforced and how costs are apportioned between winning and losing parties
-An idea of the time and costs that different countries will demand of parties to litigation

Whether you are interested in drafting an appropriate dispute resolution clause for a contract between parties in Europe or in how a court in Vietnam or Argentina would enforce a contractual provision or court award, we hope that you will find this site a useful starting point."

Dealing With An Irate Person

2007-05-15T10:28:00.000-04:00

Interesting post on How to Deal With An Irate Person using a technique called Pace and Lead. Instead of reacting in a calm manner, you first join the person in expressing emotions of equal intensity (e.g. Wow. Really? If that happened to me I would be upset, too.) and then gradually lead the person to a calmer place.

Teaching Peace

2007-05-14T11:16:00.000-04:00

From this Staff Matters article:

In Teaching Peace - A Guide for the Classroom and Everyday Life (2003), Leah Wells uses work by Colman McCarthy to bring Gandhi's principles of non-violent solutions into contemporary consideration for people today. Interestingly, these principles connect very closely with contemporary writing about conflict resolution in Western society.

Colman expounds Gandhi's 9 steps as follows:

1. Define the conflict. What is it that you are actually fighting over?...Can one person believe the argument is over one issue and the other person believes the argument is about a completely different issue?

2. Work on what's doable...When you work on what you can actually do and accomplish, the tangible goals of resolving the conflict seem more real and viable.

3. Resolve the dispute in a neutral place...

4. Don't ask what happened. Ask instead 'What did you do?' Asking what happened elicits emotions and promotes blame. Asking 'what did you do?' encourages the person to use 'I' messages and focus on the facts of the situation.

5. List the shared elements of the relationship versus the one unshared separation...People, even those who are in the midst of a disagreement, still have common ground. We all have the need for love, acceptance, understanding, belonging and attention. These are good places to start when there are many hurt feelings or when the conflict is particularly heated.

6. It's not you versus me but you and me versus our problem... Colman says 'you're not the problem, and I'm not the problem but rather the problem is the problem'. We have to work together on solving our shared conflict and work at not demonising the other person but acknowledging their humanity and core value.

7. Work on your forgiveness skills...true forgiveness means that the evil act no longer stands as a barrier to the relationship, and that we must separate the evil from the evildoer.

8. Work on your listening skills...True listening means that you are hearing the words, the underlying messages, the heart messages and the intentions of the person and truly attempting to grasp what they are relating.

9. Purify your heart. One of my favorite things to ask my students is how they do this. Some say that they play sports, meditate, pray, sleep, hike, write in a journal or talk with friends. Many report that being close to nature makes them feel purified.

How to Say No to the Demands of Others

2007-05-03T13:17:00.000-04:00

This article from Mediate.com excerpting The Power of a Positive No by William Ury,

offers specific key words or phrases you can use in saying No to the other's demand in a way that flows naturally from your Yes, your power, and your respect. Remember that your tone and underlying intent need to be congruent with your words if they are to have the right impact...

"No" or "No Thanks"...
"I Have a Policy"...
"I Have Plans" or "I Have Another Commitment"...
"Not Now"...
"I Prefer to Decline Rather Than Do a Poor Job"...

In short, know your limits, acknowledge them freely, and spend your time on what you can do well. Both you and the other will be better off in the long run.

General Counsel Favors Mediation and ADR

2007-05-01T13:50:00.000-04:00

In a recent interview, Mark LeHocky, General Counsel at Dreyer's Grand Ice Cream, discusses a key tool for cost-control at his company:

I actively pursue a package of early dispute resolution tools -- starting with a disciplined internal review process and the use of mediation and other ADR devices regardless of the perceived strengths and weaknesses of the positions of each dispute matter. I have served as a mediator for the federal courts for 10 years -- one of my few pro bono activities now that my kids are grown up enough that I can stop coaching soccer teams. That experience, together with my background in private practice, has transformed my thinking about how disputes arise and, more importantly, how they grow and metastasize unnecessarily.

More often than not, disputes go on longer than they should and become bigger than they need to be due to misunderstandings as to facts as much as legal issues. Sorting those items out as soon as possible is the best for everyone concerned and helps to avoid the unnecessary buildup of litigation fees and other costs. That doesn't mean we don't litigate. We do so when the situation warrants and we use the best and the brightest lawyers. But that happens only after we have pursued the early dispute resolution path in rigorous fashion.

Hat tip to InhouseBlog for the link.

When Attorneys on the Same Side Disagree

2007-04-04T13:49:00.000-04:00

"When multiple attorneys representing the same client disagree, mediation may be the answer

Excerpt from "Businesses at odds are turning to mediation"in the Nashville Business Journal:

In less than a year, [Jane] Cates' firm has handled about 200 conflict management cases. She says one interesting market they've discovered is fellow members of the bar, who they work with to settle disputes.

When multiple attorneys work on a team for a single client, for instance, the attorneys often can disagree on how to proceed with the case, explains Cates. And lawyers have been known to argue.

So resolving conflicts between fellow attorneys, Cates says, has turned out "to be a surprisingly good niche for us."

Read the rest of "Businesses at odds are turning to mediation"

Please see this idealawg post from which the foregoing was quoted for live links.

Beware of Cognitive Errors

2007-03-23T13:20:00.000-04:00

"Attribution errors occur when we attribute behavior or some other quality to a person's character or disposition rather than to situation or environment--in other words, stereotyping. Our assumptions can blind us to the real causes or triggers of behavior.

Anchoring errors occur when we make our final diagnosis based on the direction our original diagnosis steered us in, closing our minds to other possibilities--which means our final diagnosis may be wildly inaccurate.

Confirmation bias, well known to mediators, is the very human tendency to seek out data that supports our assumptions and discount data that contradicts them."

For active links to related resources, see this Diane Levin post from which the foregoing was quoted.

Lend an Empathetic Ear

2007-03-21T10:32:00.000-04:00

Richard Salem writes:

"Empathy is the ability to project oneself into the personality of another person in order to better understand that person's emotions or feelings. Through empathic listening the listener lets the speaker know, "I understand your problem and how you feel about it, I am interested in what you are saying and I am not judging you." The listener unmistakably conveys this message through words and non-verbal behaviors, including body language. In so doing, the listener encourages the speaker to fully express herself or himself free of interruption, criticism or being told what to do. It is neither advisable nor necessary for a mediator to agree with the speaker, even when asked to do so. It is usually sufficient to let the speaker know, "I understand you and I am interested in being a resource to help you resolve this problem."

As Tony Alessandra notes:

"William Ury, in his book, GETTING PAST NO, makes the point that every human being has a deep need for his or her feelings to be recognized. Knowing this can help tremendously in a difficult negotiation by creating a climate for agreement.

Ury counsels that it's important to acknowledge both the factual point, and the feelings of the other person. He uses the example of an employee approaching a boss. The employee says: "I just found out Dale makes two thousands dollars more a year than I do for the same job." Trying to explain why Dale makes more money, even if the reason is a good one, only makes the employee angrier. Instead, you must acknowledge the fact and the feelings first: "You think we're taking advantage of you and you're angry. I can understand that. I'd probably feel the same way."

That isn't what an angry person expects. By acknowledging the employee's feelings, you've helped him calm down. His next statement might be: "Well, why shouldn't I make as much as Dale does?" That shows he's ready to hear your explanation."

Empathy begins with listening. Richard Salem continues:

"Among its benefits, empathic listening

1. builds trust and respect,
2. enables the disputants to release their emotions,
3. reduces tensions,
4. encourages the surfacing of information, and
5. creates a safe environment that is conducive to collaborative problem solving...

The power of empathic listening in volatile settings is reflected in Madelyn Burley-Allen's description of the skilled listener. "When you listen well," Burley-Allen says, "you:

1. acknowledge the speaker,
2. increase the speaker's self-esteem and confidence,
3. tell the speaker, "You are important" and "I am not judging you,"
4. gain the speaker's cooperation,
5. reduce stress and tension,
6. build teamwork,
7. gain trust,
8. elicit openness,
9. gain a sharing of ideas and thoughts, and
10.obtain more valid information about the speakers and the subject.

To obtain these results, Burly-Allen says, a skilled listener:

1. "takes information from others while remaining non-judgmental and empathic,
2. acknowledges the speaker in a way that invites the communication to continue, and
3. provides a limited but encouraging response, carrying the speaker's idea one step forward."

Click on the above links for more information.

Business Facilitation ToolBox

2007-03-20T14:50:00.000-04:00

The Business Facilitation Toolbox is as the name suggests a toolbox from the Global Facilitators Network with useful articles, presentations you can download to make your workshop preparation easier, a place to get new ideas and generally a one stop shop for what you might need as a facilitation professional. Free Registration is required to download materials.

Topics covered include:

Games and Energisers
Models and Processes
Workshop Preparation
Decision Making Strategies
Hints and Tips
Using Flip Charts
Negotiation Techniques
Problem People
and much more

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Core Concerns Lead to Personal Conflict

2007-03-19T20:26:00.000-04:00

Autonomy or the freedom to make decision's for oneself is one of five "core concerns" research identifies as critical in creating personal disputes. "The other core concerns are appreciation, or having actions acknowledged; affiliation, being treated as a colleague; status, feeling that others respect one's standing; and having roles and activities that are fulfilling. Cross one of the needs and conflict arises. Respect them, and [resolution] ...is around the corner...

Principled negotiation is a strategy that seeks to move both parties away from polarizing and usually entrenched positions, and into the realm of interests. It asks how both parties can get their interests satisfied while keeping their relationship strong. Negotiating well means neither party need feel cheated, manipulated, or taken advantage of."

So states this Psychology Today article. To get from here to there, the article suggests:

"Sit Down
This signals to the other person that time will be spent to hear their side. Never ask someone to talk if there isn't enough time to listen.

Find Common Ground...
Move In
Leaning in to the conversation indicates interest. Head nods also help in letting the other side know their thoughts are being followed...

Keep Your Cool...
Be Brief...
Forget Neutrality
Trying to control your emotions usually backfires...Instead, mine the situation to find whatever positive emotions can be brought to the table...

Avoid Empty Threats...
Don't Yield
Caving on important issues may seem noble...but it ruins a relationship...Instead, look for compromises. Compromise is like stretching. Stop doing it and pretty soon there's no way to bend at all..."

Bridging the Last Gap

2007-03-16T16:59:00.000-04:00

"It's three o'clock in the morning. You’ve been negotiating or mediating since 9 a.m. and everybody is exhausted. Each side has made more concessions that it really thinks it should have had to, and the gap between the parties has narrowed to millimeters. But there it has stuck, and will stay stuck unless you do something new. Every sophisticated negotiator or experienced mediator has a personal answer to this problem, a private stock of a few gambits, often tried and sometimes successful. But John Wade has the longest list we have ever seen, 16 techniques in all. Not one of them works all the time, but together they can materially improve your batting average."

Read all about it in Chapter 54 of Wade's The Negotiator's Fieldbook found via this post from mediator blah...blah....

Characteristics of Effective Facilitators

2007-03-05T19:16:00.000-05:00

"Effective [small group activity] facilitators are flexible. They modify their small-group activities before and during use.

Effective facilitators are adaptive. They modify their small-group activities along six critical tensions.

Effective facilitators are proactive. Before using a small-group activity, they modify it on the basis of the characteristics of the participants and the purpose of the activity.

Effective facilitators are responsive. They make modifications during the small-group activity to keep the different tensions within acceptable ranges.

Effective facilitators are resilient. They accept whatever happens during the small-group activity as valuable data and smoothly continue with the activity."

Read more in this article from thiagi.com

Commercial Mediation Manual

2007-03-04T12:56:00.000-05:00

Bill Warters writes:

"Implementing Commercial Mediation was prepared by the World Bank Group's Small and Medium Enterprise Department in 2006. Using case studies, diagnostic and assessment tools, and stakeholder-specific marketing approaches, this manual provides strategies to overcome the challenges of building alternative dispute resolution programs in different national settings. The Task Manager was Alejandro Alvarez de la Campa. You can download the entire toolkit (PDF, 3.4MB), or choose one of its six chapters as noted below:

Introduction: the manual, meant for development professionals, starts with a description of its contents, applications, and limitations of ADR. (PDF, 60KB)

Chapter 1: defines individual ADR processes with attention to the features that distinguish them from conventional dispute resolution. (PDF, 103KB)

Chapter 2: provides a framework for assessing the feasibility of beginning ADR projects, using country and project-specific criteria. (PDF, 118KB)

Chapter 3: offers guidelines for designing ADR projects, centers and assessment tools, and building local partnerships. (PDF, 153KB)

Chapter 4: addresses implementation, with guidance on creating ADR-friendly environments, working within local legal contexts, and selecting cases for mediation. (PDF, 811KB)

Chapter 5: discusses why, when, and how to perform assessments that take into account resources used and outcomes achieved. (PDF, 674KB)

Chapter 6: presents lessons learned in developing ADR projects, highlighting the challenges of creating demand and sustainability. (PDF, 325KB)

The annexes: contain resources to assist program designers and managers, with descriptions of ADR procedures, case studies of projects in various country contexts, sample contract language and agreements, model codes of ethics for mediators, and a list of additional Web resources. (PDF, 3.4MB)."

Please refer to the referenced post for active links to the resources.

Culture Influences Negotiations

2007-02-26T16:09:00.000-05:00

This article by Jeswalde W. Salacuse explains how cultural influences affect negotiation styles. Salacuse states:

"Negotiating styles, like personalities, have a wide range of variation...Ten negotiating traits...can be placed on a spectrum or continuum, as illustrated in the chart below. Its purpose is to identify specific negotiating traits affected by culture and to show the possible variation that each trait or factor may take."

Understanding cultural and other factors affecting the following negotiation traits will enable you to better understand your counterpart and how your negotiating style may be perceived by the person sitting across the table.

Conflict Resolution Skills Kit

2007-02-26T15:32:00.000-05:00

"Have you ever had a conflict and wished you could have handled it better?
Conflict comes about from differences - in needs, values and motivations. Sometimes through these differences we complement each other, but sometimes we will conflict. Conflict is not a problem in itself - it is what we do with it that counts.

It is important that we do something because whether we like it or not, conflicts demand our energy. In fact, an unresolved conflict can call on tremendous amounts of our attention. We all know how exhausting an unresolved conflict can be. It is not always easy to fix the problem but a great energy boost can come when we do. Resolving conflict requires skills.

What are Conflict Resolution Skills?
They are the skills that enable us to bypass personal differences and to open up to possibilities. The skills of CR draw us closer to other people, as we jointly search for fair solutions and balanced needs. It involves a powerful shift from adversaries to co-operative partners. In this shift each person benefits.

CR Skills Create Better Work Climates and More Fulfilling Relationships
For the organisational manager, skilful conflict-handling is an important managerial tool. Conflict can be seen as an opportunity for learning more about the company - its bottle-necks and inefficiencies, as well as its areas of expertise. The learning potential of conflict often goes unrecognised when staff and management react with "fight" or "flight". "Flow", the third way, requires Conflict Resolution skills...

The Conflict Resolution Network has put together a toolkit of 12 conflict resolution skills - you can reach in and take out what fits for any occasion. They are: The Win/Win Approach, The Creative Response, Empathy, Appropriate Assertiveness, Co-operative Power, Managing Emotions, Willingness to Resolve, Mapping the Conflict, Development of Options, Negotiation Skills, Third Party Mediation and Broadening Perspectives..."

How Hostage Negotiation Works

2007-02-21T14:19:00.000-05:00

"Although hostage situations can vary greatly based on the motivations of the hostage-taker and the exact circumstances surrounding the incident, there are some basic facts that apply to all hostage situations.

The hostage-taker wants to obtain something. This can be as simple as money, personal safety or safe passage to another country, or it can involve complicated political goals.

The target of the hostage-taker is not the hostage; it is some third party (a person, a company or a government) that can provide whatever it is the hostage-taker wants.

The hostages are bargaining chips. They may have symbolic value (as at the 1972 Munich Olympics, in which the target was the Israeli government and the hostages were Israeli athletes), but the hostages themselves could be anyone."

Read more in this article from Howstuffworks.

Negotiation and the Laws of Persuasion

2007-02-14T09:12:00.000-05:00

"Being adept at persuasion is often the missing key to success in the workplace and your personal life. If you give people what they want via the Six Laws of Persuasion, they’ll most likely return the favor. And when you recognize that you are being manipulated, you can call the other side on their tactics and counter with an appropriate strategy. This will lead to a more effective way of achieving the goals of all negotiating parties...

Persuasion is the ability to influence people’s thoughts and actions through specific strategies. To become adept at this skill, you must first understand some basic principles, called the Laws of Persuasion. These six laws by themselves are neither good nor bad, but describe how most people respond to certain circumstances.Psychologist Robert Cialdini wrote the seminal book on the Laws of Persuasion, titled Influence:The Psychology
of Persuasion, in which he discusses the prevalent methods of marketing...

Here are Cialdini’s Six Laws of Persuasion:

Law of Reciprocity
Human beings, in general, try to repay in kind what another person has provided to them....

Law of Commitment and Consistency
People like to be (or at least appear to be) consistent in their thoughts, feelings, and actions...

Law of Liking
When you like someone, or believe that they are “just like you,” you are more inclined to want to please them...

Law of Authority
This is the law that uses celebrity endorsements or “expert” testimonials...

Law of Scarcity
If you are not sure you want to buy something, the minute it becomes “the last one available” you tend to have second thoughts...

Law of Social Proof...
You think if others are engaging in a specific behavior, it must be the proper thing to do..."

Read more in this article by Edrie Greer from Bnet.com.

Exploring the Language of Mediation

2007-02-13T15:55:00.000-05:00

This research paper from Andrew Rixon, Viv McWaters and Sascha Rixon focuses on the question of “Is there is such a thing as ‘speaking facilitatively’?” Thinking in terms of ecologies of language use, it asks whether there may be a particular style of communication, and language, inherent within the practice of facilitation. Its findings"indicate that facilitators do have an implicit understanding of what it means to ‘speak facilitatively’. Furthermore, this style of speech appears to be based on respect for the group and encompasses linguistic politeness devices..."

The paper includes the following examples of facilitative language:

Setting of ground rules
“Our purpose today…”
“What is the purpose of our meeting?”
“What would be the ideal outcome?”
“Where do you want to have got to when we go out that door?”
“Relax and enjoy the journey”
“Everyone’s opinion is valued, there are no wrong answers”
“All ideas are valued”
“It’s an honour to work with you”

Acknowledging participants’ contributions
“That’s an excellent thought. You are very (sincere praise).”
“That interests me, say more”
“Thank you for sharing”
“Great- good- I like it- excellent- Spot on”

Probing
“Say more…”
“Can you say more about…”
“Could you say more?”
“Tell me more about that…”
“Can you tell me more about that?”
“Please, tell me more about that.”
“Yes, please go on.”
“Say more about that if you will…”
“Please tell me more about what you mean when you stated…”
“Tell us a little more about this.”

Garnering participation
“I’m wondering how this might look/appear/feel/seem to you?”
“I invite you to…”
“I’d like to invite you to participate in…”
“Tell me about a time when…”
“I’m curious to know what others think”
“What do others think?”
“Does anyone else have [something]?”

Reflecting and clarifying
“What I have heard is…”
”Am I correct in observing that…”
“So what you’re saying is…”
“What I’m hearing is…Is that right?”
“Please clarify”
“What I hear you saying…”
“Can you help me be more clear in my mind about…”

Good stuff.

Negotiate to Resolve Conflicts:

2007-02-11T14:50:00.000-05:00

"All of us engage in many negotiations during a week but that doesn't mean we become better at it. To become better we need to become aware of the structure and dynamics of negotiation and we need to think systematically, objectively, and critically about our own negotiations. After engaging in a negotiation, reflect on what happened and figure out what you did effectively and what you need to do better.

There is no one "best" style; each of us has to find a style that is comfortable for us. Yet, everyone can negotiate successfully; everyone can reach agreements where all sides feel at least some of their needs have been satisfied. This involves a lot of alertness, active listening, good communication skills, great flexibility, good preparation, and above all it involves a sharing of responsibility for solving the problem, not a view that this is "their" problem.

To summarize the most important keys to successful conflict resolution:

*bargain over interests, not predetermined positions
*de-personalize the problem (separate the person from the problem)
*separate the problem definition from the search for solutions
*try to generate alternative solutions; try to use objective criteria as much as possible
*reflect on your negotiations; learn from your successes and mistakes"

Read more in this excellent negotiations overview from Professor E. Wertheim.

When a Picture is Worth a Thousand Words

2007-02-10T12:43:00.000-05:00

"Visual-Literacy.org is an online introductory tutorial about how data, abstract thoughts, and concepts can be graphically represented to more easily gain useful insights. One of their knowledge map examples is this excellent Periodic Table of Visualization Methods. Rolling your mouse over each form of visualization brings up an example of the technique. It looks like it would very useful if you think a visualization is in order but you're not sure which specific kind to try."

Quotation comes from this Boing Boing post.

Mediation in Organizational Conflict Management

2007-02-08T13:52:00.000-05:00

This article from ballew.org contains a good overview of conflict issues within organizations, suggesting useful ways to manage and resolve conflicts before the organization is irreparably damaged. Among the nuggets is this description of mediation and its potential uses within organizations:

"Mediation is a way of handling conflict in which two or more disputing parties meet with trained, impartial mediators in a good faith attempt to resolve their issues. The mediators facilitate an exchange in which the parties clarify the issues, hear each other's perspectives, provide new information and move toward an agreement. The mediators do not impose decisions or give advice. Mediation is a practical process through which the mediator assists the parties themselves to check facts, share feelings, exchange perceptions and ideas, and work toward agreement. In mediation the parties have responsibility for the resolution. An agreement is reached when the parties are satisfied with all of its terms.

Examples of workplace situations in which mediation works well are:

Disputes between co-workers or colleagues who are unable to function together in the workplace environment.

Interdepartmental conflicts.

Communication breakdowns/barriers."

Conflict Dynamics Checklists

2007-02-03T19:31:00.000-05:00

For people struggling with difficult conflicts, these checklists from BeyondIntractability for intermediaries and adversaries hghlight conflict dynamics that are helpful to understand, as well as options for dealing with common problems. Topics covered include:

"International Conflict, Peacebuilding, Post-Conflict Stabilization
Public Policy
Workplace / Organizational Conflict
Interpersonal Conflict"

Six Tips fo Women Negotiators

2006-12-27T13:03:00.000-05:00

"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

2006-12-08T11:27:00.000-05:00

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
trustworthy?
-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
decision-maker?
-Does the process itself fit within the organization’s
culture?
-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

2006-11-22T10:42:00.000-05:00

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

2006-10-25T12:07:00.000-04:00

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"

and

"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

2006-10-24T11:02:00.000-04:00

"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

2006-10-06T16:59:00.000-04:00

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

2006-10-06T16:41:00.000-04:00

"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

2006-09-20T11:13:00.000-04:00

"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."

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Stages of Collaboration

2006-08-28T17:16:00.000-04:00

"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

2006-08-23T13:58:00.000-04:00

"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

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Detecting Lies

2006-08-16T12:43:00.000-04:00

"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

2006-08-07T13:28:00.000-04:00

"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

2006-08-07T09:58:00.000-04:00

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

2006-07-31T15:57:00.000-04:00

"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

2006-07-31T10:40:00.000-04:00

"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

2006-07-20T12:51:00.000-04:00

"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

2006-07-20T12:00:00.000-04:00

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

2006-07-17T23:16:00.000-04:00

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.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

International Commercial Arbitration Offers Advantages

2006-07-10T09:03:00.000-04:00

"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

2006-07-02T10:35:00.000-04:00

"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

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Fear of the "No"

2006-06-23T12:26:00.000-04:00

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

2006-06-21T08:21:00.000-04:00

"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!

2006-06-20T10:41:00.000-04:00

"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"

2006-06-19T20:20:00.000-04:00

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

2006-06-19T10:00:00.000-04:00

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

2006-06-15T09:58:00.000-04:00

"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

2006-06-14T11:43:00.000-04:00

"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?

2006-06-12T08:29:00.000-04:00

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

2006-06-10T15:53:00.000-04:00

"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

2006-06-09T15:05:00.000-04:00

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

2006-06-09T14:30:00.000-04:00

"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

2006-06-01T09:44:00.000-04:00

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

2006-05-31T11:48:00.000-04:00

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

2006-05-30T20:41:00.000-04:00

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?"

"No"

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."

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

We Honor the Fallen on Memorial Day

2006-05-29T09:19:00.000-04:00

Poppies
TigerTigerTiger.

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

2006-05-28T12:25:00.000-04:00

"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?

2006-05-25T13:35:00.000-04:00

"'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

2006-05-25T13:02:00.000-04:00

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

2006-05-18T14:38:00.000-04:00

"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.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Negotiating in China

2006-05-10T17:45:00.000-04:00

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

2006-05-01T11:29:00.000-04:00

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

2006-04-25T14:45:00.000-04:00

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

2006-04-23T17:28:00.000-04:00

"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

2006-04-19T08:05:00.000-04:00

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

2006-04-17T20:05:00.000-04:00

"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

2006-04-13T07:56:00.000-04:00

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

Rejection
Ridicule
Embarrassment
The Unknown
Failure
Success
Disapproval

Read more in 7 Fears of Confronting Conflict - Strategic Conversations

Strategic Negotiations

2006-04-12T10:54:00.000-04:00

"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.

WHAT IS 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

2006-04-09T14:05:00.000-04:00

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

Alignment:
...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...

Autonomy:
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

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

Guides to Negotiating Explained

2006-04-07T10:00:00.000-04:00

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

2006-04-06T09:19:00.000-04:00

"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:

2006-04-05T09:51:00.000-04:00

"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

2006-04-04T08:25:00.000-04:00

"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

2006-04-03T16:05:00.000-04:00

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

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Called to Peace Making

2006-03-31T10:26:00.000-05:00

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

2006-03-30T20:03:00.000-05:00

"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

2006-03-29T08:56:00.000-05:00

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:

Workplace
Organizational Conflict
Interpersonal
International
Peacebuilding
Post-Conflict Stabilization
Public Policy

Structured Settlements Explained

2006-03-28T12:56:00.000-05:00

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

2006-03-28T08:17:00.000-05:00

"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

2006-03-28T08:08:00.000-05:00

"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

2006-03-26T18:35:00.000-05:00

"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

2006-03-24T10:44:00.000-05:00

"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

2006-03-23T00:36:00.000-05:00

"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.

Technorati Tags: mediation, adr, alternative+dispute+resolution, dispute+resolution, arbitration

Examples of Powerful Questions

2006-03-22T07:17:00.000-05:00

"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

2006-03-21T05:33:00.000-05:00

"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.

Technorati Tags: mediation, adr, alternative+dispute+resolution, dispute+resolution, arbitration

Positions vs Interests in Bargaining

2006-03-20T06:09:00.000-05:00

"A position is….

A demand, or
A proposal, or
A preferred course of action

Key features:

It is specific
It involves doing, action
A position is the “What to do”

An interest is….

The reason(s) for a position, or
A goal or objective

Key features:

An interest is more general than a position, and open to interpretation
It is not an action

An interest is the “Why” behind the “What”

Read more in this article from the UNC School of Government.

Washington's Will Had ADR Clause

2006-03-19T11:58:00.000-05:00

From this post from Death and Taxes - The Blog:

George Washington's Will included an ADR provision...as follows:

But having endeavoured to be plain, and explicit in all Devises--even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants--each having the choice of one--and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.

Personality Styles Affect Negotiations

2006-03-17T08:37:00.000-05:00

"Not everyone negotiates from the same point of view. People have different stakes in a negotiation. Determine what issues concern the other party the most. Also, know what your style is like so you can best prepare to negotiate a win-win situation.

The following are the four major personality styles, and how to recognize these types:

1. Connecters: This type is down to earth, friendly and very people oriented...When dealing with this type, be open, honest, and start with some small talk...

2. Networkers:...The more they like and trust you, the more flexible they will be...They want to see the big picture-so hit on your key points first, and then bundle your small points together...

3. Producers:...These people tend to shoot straight and not mince words...Producers look for the best possible deal and pride themselves on their ability to get what they want...These people love the thrill of the negotiation, and you will disappoint them if you cannot present a compromise.

4. Analyzers: This type may...may remain more non-emotional during a negotiation....The best way to handle analyzers? Give them the facts... Analyzers require space in order to make a decision, and accuracy is most important to them."

Read more in this article from lifeintheusa.com.

Ten Positional Bargaining Tips

2006-03-16T13:15:00.000-05:00

"1. Your power lies in your walk-away alternatives. Make sure that you have real, viable options that don't require an agreement...
2. Do not disclose your walk-away alternatives...
3. Figure out the walk-away alternatives of the other parties...
4. No offer is too high. Any offer is valid provided you can present objective criteria that prove each term of the offer fills to some extent the underlying needs of all parties.
5. Don't react emotionally...[to] tactics intended to intimidate, rush, draw out discussions, or otherwise derail the focus from underlying needs and mutual gain...Draw attention back to substantive interests and options...
6. Remember that all the needs presented are not of equal importance...
7. Listen...
8. Know the authority of each person in the room...
9. Analyze concessions...
10. Never be bludgeoned into splitting the difference..."

Read more in this article from batna.com.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

False Assumptions Lead to Wrong Conclusions

2006-03-16T13:01:00.000-05:00

Regarding negotiations, "the best defense against a poor assumption is good preparation. Thorough knowledge of your topic, your goal, your strategies and objectives, your company, yourself, your opponent, his company, and the issues relating to the task at hand is the best way to insure your assumptions are reliable...

During your preparation separate what you know and what you assume to be the case. Then focus your conversation on validating your assumptions. In addition to using the preliminary casual discussion period to build a good working relationship or to create a healthy environment within which to negotiate, do not miss the opportunity to uncover false assumptions."

Read more in this how-to-negotiate post.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution