18 Dec ’09

In the beginning there was only darkness…

OK, maybe not exactly darkness, but people basically argued over positions, and disputes were resolved through either the exercise of power, or by compromising on their positions. The art and science of negotiation can be divided into three historical phases, beginning with the Classical phase during which positional bargaining was refined.

I would venture that the first great Classical writer on negotiation was the Chinese general, Sun Tzu – author of the still popular (and well worth reading) treatise, “The Art of War“. Sun Tzu applies tactical and strategic thinking to the practice of warfare. His ideas are still worthwhile today, and are still used by military and business leaders today. Unfortunately, Classical negotiation tends to result in win/lose or lose/lose solutions. While the defeat of an enemy and successful subjugation of conquered foes may have some value, on some occasions, in some shooting wars; there are clearly shortcomings to this kind of approach to problem-solving.

The second phase of Negotiation Theory could be termed the “Modern” phase. Modern negotiation theory begins with the Enlightenment and reached its peak in the mid-twentieth century with the publication of “Getting to Yes” by William Ury and Roger Fisher. The modern negotiator understood that positional bargaining tended to result at best in only one party being satisfied with the outcome – and more often than not – nobody being satisfied with the outcome. Even military strategists understood that military victories were brief and transient if the vanquished were left too miserable. Think “Paris 1917″ vs. “The Marshall Plan”. The allied victory in WW I was a key factor leading to the tragedy of WW II, while the Marshall Plan resulted in the miracle of modern Europe. Win/Win negotiating, in which all parties gain something and satisfy their key interests, leads to agreements that last because everyone one has a stake in the outcome.

One of the historical features of the late twentieth century was the dawn of postmodernism in art, architecture, and philosophy. Postmodernism is characterized by eclecticism and relativism. Detractors of postmodernism often point to the idea of “moral relativism” in which there is no longer a fundamental grounding of what constitutes moral and ethical behaviour since everything is determined by context. I’m not going to concern this brief Blog posting with an issue as big, broad, and divisive as moral relativism… But, postmodernism offers important advantages to contemporary negotiators.

Most professional negotiators and mediators have experienced situations where the Classical model works best, even though they usually prefer the Modern model. They have also experienced situations where the parties need to be steered away from positional bargaining, and directed towards a more collaborative mode of communication. And, of course, everyone has at some point or another experienced that “worst case” scenario where nothing works. The Goal Focused Way offers a model that builds upon, takes from, and integrates ideas of, the Classical Model, the Modern Model, AND ideas from fields not generally associated with the field of negotiation. This postmodern approach allows people from all walks of life and from all different backgrounds to use basic knowledge and simple tools to build their own micro-models for each situation. The Goal Focused Way provides the essential foundations and the critical framework to consistently achieve the best possible outcome for every situation. Using the Goal Focused Way will not necessarily result in “winning” every dispute or in reaching every goal – but using it will ensure that achievable goals can be determined and that what is achievable is in fact achieved.

May 282010
 

30 Nov ’09

This idea comes from Solution Focused Brief Therapy. SFBT is a component of The Goal Focused Way. While not all psychotherapy models are adaptable to a professional and personal negotiation model, I think that this part of the SFBT model is.

For psychotherapy purposes this means accepting that a client may not be ready to reach for the “big goal”, but might be ready to take a small step towards a smaller goal. For negotiators, this means understanding that substantive and objective evidence is always influenced by perceptual interests and subjective feelings. The substantive facts and objective evidence will have a big influence on the type of settlement achieved, but the perceptions and feelings of the people involved will often determine the limits of the available settlement options.

May 262010
 

30 Sep ’09

Mediators and lawyers are generally familiar with, and comfortable dealing with, legal issues. But my favourite law won’t be found in any legislation. It is the “law of unintended consequences”.

This is the “law” that almost always causes people the most trouble. The best clue that you may be about to become caught up in this law is when you think that you have found the “eureka” solution to a problem that has vexed everybody else. Chances are that whatever it is you’re thinking, someone else has thought about – and then thought better of it!

The example that comes to mind for me now relates to the propensity for nations to erect trade barriers to protect domestic jobs and industries. The United States sees American jobs manufacturing jobs disappearing, partly because foreign countries are selling the same products and lower prices because they have lower costs. There is a temptation to “level the playing field (sounds innocent enough) by placing a tariff on the foreign products so that they cost about the same, or more, as the domestically produced product.

…But what are the consequences? Well, the intended consequences are clear enough. Local manufacturers can continue to produce products that sell domestically at competitive prices. A side benefit (intended or otherwise) might be to send a message that America is not to be “messed with”. It’s those unintended consequences that need to be considered. First, the country that was making the cheaper product might respond with a tariff of their own against American products. Jobs in one factory are saved, but other jobs are lost in another factory (or farm). Second, the American company no longer has to innovate or control costs to compete domestically, but this will quickly result in that company becoming uncompetitive in other markets. Some of the saved jobs are then lost anyway due to declining international sales. Third, the foreign company is forced to innovate and lower costs, so that within a short time they may once again be able to offer their product in the USA at price lower than the domestic product; even with the tariff. Fourth, the foreign producer’s innovations might result in the creation of a better product that Americans will pay more for. It becomes apparent that the unintended consequences of a “simple solution” are worse than the problem that the solution was supposed to solve.

And… there is a fifth unintentional consequence that I still haven’t even mentioned. It is the most dangerous consequence of all. Why? Because it is the one that cannot be predicted!

Unintended consequences can result from nearly any decision. The trick for decision makers, negotiators, and mediators, is to recognize that unintended consequences are possible, plausible, and probable. Good decision makers and great negotiators know this, and account for it in their work. For some quick tips to increase your NQ (Negotiation Quotient) check out the free tips that I offer on the Goal Focused Way website.

 

17 May ’09

People generally consider the thing that we call “The Truth” to be nearly identical to the events that constitute what we agree to be “The Facts”. Most of the time this assumption works to the mutual advantage of everybody. But not always. Sometimes assuming that The Facts and The Truth are the same things either leads to conflict, or exacerbates an existing conflict. Interest-based negotiation, and classic mediation theory deals with the differences between agreed upon facts and perceived truths fairly effectively most of the time. By accepting that different people will have different views upon what constitutes truth based on the same set of facts, negotiators and mediators advance towards agreements that satisfy interests, and do not require all of the participants to agree on the same version of The Truth. But in our hearts we almost always “know” that The Truth is based on The Facts.

The American television comedian, Stephen Colbert, coined the term “Truthiness” to describe an interpretation of facts in which The Truth is is the reality that is intuitively known without regard to “liberal ideals” like reason or logic. Truthiness was used by Colbert to skewer politicians in the G.W. Bush administration, and their neoconservative supporters. But like most good comedy, we find it funny because it rings true to us in ways that extend far beyond its comedic useage. In fact, all of us tend to make our real-life decisions based neither on facts nor on The Truth, but based largely on Truthiness.

This reliance on perceived truth (faith-based truth, believed truth, personal truth, etc.) must be taken into account in every negotiation and mediation. While we all like to believe that people will reach the same conclusion of what constitutes The Truth when presented with enough factual evidence, my experience has tended to point to different conclusion. People seldom abandon their version of The Truth regardless of The Facts presented. Rather, they (we) continue to rely on the “Truthiness” of gut feelings, and selectively adapt the factual evidence to fit their predetermined perceptions. The propensity towards Truthiness as opposed to The Truth is a limitation on the ability Interest-based negotiation to transform relationships. The interest-based approach is probably still the most effective way to reach mutually agreeable goals for many conflicts. However, human nature presents a barrier to its transformative utility. In the end it functions largely as a glossy veneer over basic power-based conflict resolution.

ADR Down Under

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May 252010
 

14 Apr ’09

Yes, they do it “down under” too!

Australia has an active ADR community, and Bond University in Queensland has a Dispute Resolution Centre as part of its Faculty of Law.  The aims and objectives of the Centre are:

  • To promote a better understanding of the need for, dynamics of and advantages of consensus-oriented procedures of dispute resolution.
  • To develop modules in negotiation, mediation, arbitration and other forms of alternative dispute resolution in the Law School programs.
  • To provide training in dispute resolution methods for lawyers and other professionals involved in this field.
  • To encourage and facilitate research and publications in the different areas of dispute resolution.
  • To provide an umbrella organisation for individuals and bodies involved in this field.

Currently it is still possible to access articles from the old Bond University ADR Bulletin at http://epublications.bond.edu.au/adr/ and tp access newer articles from the new ADR Bulletin at http://www.bond.edu.au/study-areas/law/centres/drc/adr_bulletin.html There is also a newsletter service by subscription Click here to subscribe .

 

01 Jan ’09

Below is a brief excerpt from a really good article on Mediate.com about mediator impartiality. The author, Alan Sharland, does an excellent job of differentiating between impartiality and amorality.

Impartiality is one of the more commonly recognized aspects of the role of the Mediator.

This does not mean that the Mediator should somehow become inhuman and not have a feeling of bias towards one party or another, but that they practice in a way that minimizes any manifestation of this bias.

This is an important distinction to make. No-one can genuinely claim to be impartial, but they can continually review their own feelings and thoughts about someone or a situation in order to acknowledge this and then monitor, and adjust where necessary, their practice as a mediator in the light of this awareness.

Complete article: Impartiality

May 242010
 

28 Aug ’08

It is not  uncommon for lawyers to charge contingency fees, and it is not uncommon for mediators to be underpaid and undervalued. So why shouldn’t mediators bill on a contingency basis? The common argument is that because mediators must remain scrupulously neutral anything that might compromise that neutrality is considered unethical. For the record, I concur with this majority view… but there are alternative views as this article from the Mediator Blah Blah Blog puts forward:

Contingency fees for mediators

Brief Excerpt:

I have been on this soap box before at Why do so few mediators make any money? and Cheaper is a short term hit, not a long term advantage as well as other posts on this blog.

But seriously what’s wrong with the way we price ourselves? Why are some mediators not making money?

Most mediators charge fees based on time. This usually means hourly or daily rates. But why?

There will be other alternatives to time based fees and these are just some of them that spring to mind;

1.  A flat base fee, increased by an amount for every extra party to the mediation-
2.  A success fee – flat fee (or no fee) plus a success component
3.  A fee based on the sticker price of the claim
4.  A fee based on a percentage of the settlement amount
5.  A fee based on a percentage of costs saved by avoiding litigation
6.  A fee-based on the percentage of the value created by the mediated outcome

(Article by Geoff Sharp)

May 242010
 

10 Aug ’08

From an article in the New York Times of August 7. 2008 by Jonathan D. Glater:

Note to victims of accidents, medical malpractice, broken contracts and the like: When you sue, make a deal.

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

Helping people to negotiate fast, fair settlements is what professional mediators are trained to do. It makes sense financially, emotionally, and practically – and the evidence supporting its efficacy continues to accumulate.

Link to the full article

Costs of Conflict

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May 242010
 

26 Jul ’08

Below are just a few of many examples of how workplace conflict adversely affects the “bottom line” of organizations. The proper management of workplace conflict not only makes employees happier and more productive, but also creates more profitable and sustainable organizations.

Employees who rate their managers as “sensitive” miss an estimated 3.7 days of work, whereas employees whose managers are rates as “non-sensitive” miss approximately 6.2 days of work. (MacBriade-King, J.L., and Bachmann, K. Solutions for the stressed-out worker. The Conference Board of Canada,1999)

In a study of 50 000 Canadian employees nationwide Health Canada found that “the greater the number of sources of stress reported in the social environment at work, the greater the likelihood of reporting more than 10 days off as a result of ill health.”(Health Canada, Workplace Health System, no.3, 1998)

Employees who report the following sources of stress are more likely than others to be absent for six or more days…interpersonal relations; job control; and management practices” (Health Canada, Canadian Fitness and Lifestyle Research Institute. Workplace Health System, no.3.1998)

Additional examples of how stressful, conflict-filled workplaces affect organizational productivity are available at http://www.conflictatwork.com/conflict/cost_e.cfm in this article provided by CCR international.

May 242010
 

08 Jun ’08

Why do so few mediators make any money?

“The vast majority of people who enter the mediation market drop out within two years. Of those who persist, about ten thousand earn $50,000 or more per year from mediation.”

“Of the few thousand mediators, who are able to mediate full-time, the majority earns $50,000 or less. There are fewer than a thousand mediators and possibly a few hundred, who make a good living, grossing $200,000 or more per year.”

The above quotes are excerpted from the Mediator Blah Blah Blog of Geoff  Sharp.

He does go on to add that he “would be remiss if [he] did not mention that the very next chapter asks Why do some mediators make so much money?”.

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