EXTREME POWER IMBALANCE
IN MEDIATED NEGOTIATION
by
ANDREW MARK SACHS
B.A., State University of New York at Binghamton
(1979)
Submitted to the Department of
Urban Studies and Planning
in Partial Fulfillment of the
Requirements for the Degree of
MASTER IN CITY PLANNING
at the
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
June 1986
Andrew Mark Sachs 1986
The author hereby grants to M.I.T. permission to reproduce and
distribute copiespof this thesis document in whole or in part.
Signature of Author:
Depar{ment of Urban Studies and Planning May 27, 1986
Certified by:
Thesis Supervisdbr: Prof. Lawrence Susskind
Certified by:
Thesis Reader: Prof. Michael Wheeler
Certified by:
Thesis Reader: Prof. Jeffrey Z. Rubin
Accepted by:
Gary Hack /
Chairman, *fepartment of Urban Studies and Planning
M
,wuzh
E
I--CH
N ; F- -L
JUL 1 0 1986
1
1.!:, 2 A F; I V ::
1
EXTREME POWER IMBALANCE
IN MEDIATED NEGOTIATION
by
ANDREW MARK SACHS
Submitted to the Department of Urban Studies and Planning
on May 27, 1986 in partial fulfillment of the requirements
for the Degree of Master in City Planning
ABSTRACT
be
Multi-issue, multi-party conflicts in the public sector can
resolved by supplementing traditional dispute resolution processes with
mediated negotiation. Mediated negotiation involves face-to-face dialogue
among disputants with the help of a nonpartisan facilitator. It enables
disputants to identify or invent areas of overlapping interest that can
for voluntary, mutually accepted settlement.
as
the
basis
serve
Bargaining power is a person's ability to reach a negotiated settlement
that satisfies both his and his adversary's interests.
This
analysis examines how negotiators and mediators deal with
extreme power imbalance. Three obstacles to negotiation in situations of
extreme power imbalance are: the perception of weaker parties that
negotiation would be futile; the perception of stronger parties that
their power is absolute; and a maldistribution of critical resources such
as information, technical expertise, and negotiating skills.
a wide range of ideas about how
have
practitioners
Although
negotiators and mediators should approach situations where power is
extremely unbalanced, conclusions can be developed regarding ways to
the interests of disputants:
while
protecting
foster
negotiation
disputants can use a mediator to help them evaluate the costs and
benefits of negotiation relative to nonsettlement; mediators can help
parties gain access to technical resources for analysis, training in
negotiation, critical information, and funds for expenses; and mediators
can help diffused parties to combine their resources into efficient
coalitions for negotiating.
Thesis Supervisor: Dr. Lawrence Susskind
Professor of Urban Studies and Planning
2
Table of Contents
Introduction......................................4
Bargaining Power..................................8
Extreme Imbalances in Power......................16
Practitioner Responses to
Extreme Power Imbalance.....................23
Conclusion.......................................49
References.......................................52
3
Introduction
have
Disputants in public policy conflicts
addressing
one
broad
choices
for
differences. They can avoid the dispute, contend against
their
(typically
another
three
courts,
in
an
is
legislatures), or negotiate. Negotiation
and
agencies
administrative
information
of
exchange
for the purpose of reaching a voluntary settlement.
Disputants
as
they
have
led
they are not really as distinct
of
advantages
negotiation
of these three responses to conflict;
out
and
into
move
Nevertheless,
distinct
numerous
mediated
appear.
to
recently
a
negotiations (negotiations with the assistance of
neutral
facilitator)
over public policy disputes.
to
over
control
to
disputants
enables
Negotiation
parties (Susskind, Bacow and Wheeler, 1983). If
outside
enhanced
the opportunities for satisfaction with the outcome can be
then
Susskind,
McCreary 1985:368; Wondolleck 1985:348-352;
balancing
of
a
in
are represented
affected
parties
Wheeler
1983:151,
interests
(Wondolleck
205,
260).
Patton
1983)
and
Wheeler
and
than
decisions
352;
If unforeseen
principled
made
Susskind,
changes
negotiation
better
a
provide
can
outcome
1985:349-350,
compliance difficulties arise, a
1981;
the
negotiation,
parties'
the
Bacow
Susskind
that will be affected by a settlement
parties
all
If
151).
1983:95;
Talbot
1983:260;
Ozawa
and
(Susskind
1983:56-85,
without
adopted
negotiation is entered into voluntarily and settlement is
coercion,
turning
without
problems
solve
without all
Bacow
occur
process
or
and
other
(Fisher
-- which leaves relationships among disputants intact
4
or
improved
--
a more ready vehicle for correction than judicial
offers
Bacow
Susskind,
do
may
better
Susskind,
Bacow
Wheeler
and
joint
their
maximize
discover ways to increase or
gains
might
(Raiffa
1982;
and Thomas-Buckle
Buckle
75-76;
1983:24,
they
differences;
their
splitting
simply
than
Parties
1985:352).
Wondolleck
(Susskind and McCreary 1985:366, 369, 370;
ways
creative
in
differences
their
resolve
to
disputants
enables
negotiation
Finally,
259-260).
1983:204,
Wheeler
and
372;
371,
1985:366,
or administrative enforcement (Susskind and McCreary
1986).
Extreme imbalances of power pose a
mediators.
and
In
situations
is extremely unbalanced, the
power
where
could
achieve
The
negotiating.
by
powerful
considered meaningless by the much more
substantial
available
negotiation
are
to
its
compared
party
winnings. Similarly, the losses that a much weaker
unilateral
party incurs against its opponent
loss)
of
benefits
gains
dwarf
to
stronger party considers its gains outside of negotiation
it
negotiators
to
challenge
special
through
are
negotiation
any
great;
with
a
gains
much
(reductions
stronger
party
in
are
considered inconsequential by comparison.
In
this
thesis
I describe how disputants can deal with extreme power
imbalances. I show what disputants themselves could do, and
could
help.
mediators
Information on how some negotiators and mediators think about
the sources of bargaining
imbalances
how
were
used
in
power
and
developing
facing extreme imbalances.
5
ways
to
deal
recommendations
with
for
extreme
power
practitioners
Selection of and access to the
directed
by
That
selected
research
for
practitioners
followed
from
research
Michael Wheeler of the Program on Negotiation, Harvard
Prof.
School.
Law
practitioners
a
series
interviews (Wheeler 1985).
"debriefing"
of
resolution
dispute
environmental
Separate interviews for this thesis made use of
the
working
relationship
that was established with those practitioners.
and
Negotiators
imbalances
extreme power
of
purpose
changing
block
the
change the distribution of power when
can
mediators
distribution
assessments of the potential value of
to
In
negotiation.
general,
value
perceived
negotiation
of
contention
power
The
underlying
of power is to change disputants'
and
avoidance
relative
and mediators can empower both
negotiators
imbalanced
sides in an extremely
negotiation.
successful
relationship
by
increasing
the
and/or decreasing the perceived value of
its alternatives.
The
recommendations
discussion
of
made
in
the
two).
from
a
the nature of bargaining power (chapter one) and the unique
circumstances of extreme power imbalance
(chapter
follow
chapter
final
In
and
problems
the
it
engenders
chapter three, summaries and analyses are presented of
practitioner interviews.
focus
We
environmental
primarily
dispute
(although
resolution
not
exclusively)
on
However,
practitioners.
that practitioners use in resolving environmental disputes
from
and
becoming
have
influenced
increasingly
resolution
dispute
to
difficult
6
define
in
the
ideas
of
the processes
have
developed
diverse fields. It is
certain
disputes
as
"environmental"
"criminal,"
"labor,"
as
others
and
"organizational,"
"interpersonal"
thesis is confined for the most part to
and
practitioners
generalized
cases,
theories
recommendations
have
of
any
it
has
dispute
also
"community,"
"international,"
or otherwise. Although the
environmental
been
resolution.
dispute
resolution
possible to draw from more
If
the
analysis
and
applicability at all, it may be to all disputes
in which power is extremely unbalanced.
7
CHAPTER ONE: BARGAINING POWER
the
from
partially
stems
difficulty
constantly changing as a result of what disputants do
beyond
their
control.
negotiators
picture of bargaining power for
is
events
is to develop a
multi-party,
in
as
well
as
chapter
this
in
objective
Our
power
bargaining
that
fact
This
applied.
and
accumulated
is
power
bargaining
which
in
ways
however, when we try to define or describe the
arises,
Difficulty
power.
bargaining
of
sources
the
about
Most people have an intuitive idea
multi-issue
conflicts.
various
are
There
perspectives on bargaining power. For example, one
view is that power flows into the hands of the negotiator who
parties
resources that
include
resources
to
technical
are
threats
and
1980).
(Schelling
consultants,
a
Finally,
give
to
thought
belongs to those who can integrate their
to
through
follow
on
power
bargaining
party
a
view
fourth
These
negotiate.
they
authority, experience, and access
Commitments
expertise.
legal
not
or
whether
possess
money,
frequently
view is that bargaining power stems from
Another
1983).
(Colosi
doubts"
"create
can
is that power in negotiation
negotiating
partner's
interests
with their own (Fisher 1983).
A
description
followed
by
a
negotiation,
follows
of
consideration
the
problems
sources
some
of
that
how
can
power
arise
unbalanced, and the things that negotiators and
those problems.
8
of
bargaining power. It is
can
when
be
distributed
mediators
extremely
is
power
do
in
to
correct
SOURCES OF NEGOTIATING POWER
Resources that are Independent of Bargaining
It
seems
as
sorts of resources can be used to influence
all
though
the outcome of a negotiation. A party can use experts or its
to
facts and therefore certain conclusions.
certain
of
others
convince
the
Knowledge and experience accumulated away from
at
negotiators
influence
analyses
own
table
bargaining
can
table. Money can be used to purchase other
the
resources, or it can be used directly as an incentive for settlement.
organizations)
environmental
According
countries.
about
knowledge
developing
over
to
coalition
a
and
the
(between
negotiation
a
describes
Association
Chemical
Agricultural
World
(1984)
Gusman
Sam
National
church
of
and
reduction of pesticide misuse in Third
negotiators
Gusman,
countries
bargaining
exercised
hand
first
with
power
over
those without the knowledge.
hand
First
power
knowledge,
parties
that
table.
negotiating
acquire
People
based on experience, is a source of bargaining
separately
was
what
actually
happens
at
the
without this knowledge had greater uncertainty
about whether their assumptions and proposals
of
what
from
occurring
inside
made
sense.
The
knowledge
the countries, and therefore of
what might work, was often decisive in coming to
some
conclusion
(Gusman
1984).
In
a
water pollution control case at the Holston River, EPA Region IV
9
and the Tennessee Eastman Company
the
about
of
conditions
water
a
an
agreement
pollution discharge permit
(Susskind,
negotiate
to
able
were
Bacow and Wheeler 1983). The company and EPA viewed
as
differences
and sought to resolve them out of the public eye. The
technical
primarily
their
company, in particular, wanted to
publicity
avoid
until
questions
over
EPA's technical approach were resolved by company and agency specialists.
The
of
power
negotiating
independently
resources that had been developed
(consultants
internal
and
of
technical
its
scientific
staff).
EPA's
authority,
bargaining.
the
through
stemmed in part from its statuatory
in large part from
stemmed
power
exert
to
able
was
company
parties
both
expertise
power
negotiating
its
particularly
The
mandate
to notify the public of its intent to issue a permit for the company.
In
Indians
another
generated
would
Cheyenne
Montana
case,
agreement
an
drop
legal
Power
which
with
hundreds
of
and
stipulated
the Northern Cheyenne
thousands
agreed
of
to
dollars
provide
bank,
funds
for
a
Northern
community
the
Northern
worth of job training
scholarships, bus service, air quality monitoring funds,
tribal
the
that
challenges to the company's proposed Colstrip
power plant. In exchange, Montana Power
Cheyenne
Company
capital
for
the
relations project, law enforcement
funds, and planning funds (Susskind, Bacow and Wheeler 1983).
Montana Power Company's financial resources played a
in
the
cost
role
Colstrip settlement. Resources that it possessed separate from the
negotiation enabled it to control the terms of settlement
the
significant
by
underwriting
of social, cultural, economic and environmental programs for the
10
Northern Cheyenne.
than
ways
exercised
the
for
have
expertise could
opponent,
other
for negotiation. For example, Montana Power could have used its
In
EPA.
through
only
convince
process,
permit
formal
the
it
the
in
negotiate as well. The knowledge used by negotiators
been
have
could
but
its
of
instead
judge
a
authority
EPA's
case,
same
the
to
used
been
technical
Eastman's
Tennessee
Cheyenne.
Northern
than
rather
lobbyists,
or
litigation
financial resources to underwrite
incentives
in
used
The sources of power illustrated above could have been
chose
Third
to
World
pesticide case could have been used in a public relations campaign.
Creating Doubts
Colosi
that when opposition to settlement is strong,
suggests
(1983)
a negotiator may be able to exert power towards settlement
opponents
uncertain
blocking
he
settlement,
his
their resistance. If a negotiator can identify
about
which assumptions, problem definitions,
are
making
by
can
positions
proposed
or
solutions
move negotiations toward settlement by
raising doubts in his opponents' minds over those ideas.
Colosi offers an example of a community
establishment
of
a
that
an
advocate
raising doubts in the
which
community
which
opposes
the
home for the mentally retarded in its neighborhood on
the grounds that such a home would make
says
coalition
of
the
community
safety
is
the
neighborhood
less
safe.
He
home might exercise negotiating power by
negotiator's
endangered
11
by
mind
the
over
the
extent
to
home. The advocate could
suggest
that
numbers
of
community
safety,
rather
to
contribute
would
adults
capable
sincere,
additional
than undermine it. The advocate
retarded
the
of
could ask the community to look at the abilities
adults
as well as their problems.
The
its
only about
home is trying to make the community uncertain
the
for
advocate
is
not
the
uncertain
about
abilities
of
mentally
community
safety.
make
to
trying
He
opposition.
retarded
the
adults
community
about
or
In fact, his negotiating power depends as much upon his
ability to establish new convictions in the other negotiator's mind
as
it
does on his ability to raise doubts.
this
Perhaps
is
how one "creates doubts." A negotiator has
actually
arguments
block
settlement.
assumptions, problem
blocking
settlement
He
has
definitions,
and
to
order
to listen to his opponent's arguments in
understand
to identify which of his opponent's
positions
or
proposed
interpret
new
data,
are
solutions
are susceptible to doubt. He has to do something
to create that doubt -- provide counter examples, cite
and
those
how
experts,
introduce
simulate alternative futures -- and then he has
to establish new convictions in his opponent's mind which will
lead
to
a
settlement.
Negotiating
power
depends
uncertainty and disbelief). The way
upon
much
to
establish
more
new
than
doubt
conviction
opponent's mind is to show how settlement will satisfy his interests.
12
(i.e.,
in
an
Commitment
conveys his own strong intentions, and can influence the
A negotiator
from
range of options
have
partners
his
which
by
choose,
to
making
commitments. (Fisher 1983; Schelling 1980).
In a case
over use of land in Wyoming
commitments
made
to
out
carry
threats
in
influence settlement. The dispute involved land that is critical
to
order
Golten (1984), parties in a dispute
Robert
by
described
for
habitat
antelope
environmentalists
owns
who
rancher
and
a valuable
(represented by
the
surface
coal
Federation),
were
-a
company
that
owns the
negotiating
uses
for
a coal
rights,
parties
Four
Wildlife
National
underground coal and a federal agency --
reserve.
the
land.
to
Prior
the
negotiation, the rancher erected a fence that prevented
antelope from gaining access to the habitat.
rancher
later
removed
the
fence,
but
Several
died.
antelope
The
he demonstrated that he
because
would go to such lengths, Golten said, the environmentalists
to
tried
be
"especially reasonable" in the negotiation.
Wildlife
National
Federation
filed
suit
unsuitable for coal development. If successful,
about
million
fifty
kind
of
legal
this
designate
would
the
have
land
placed
tons of coal out of the rancher's and coal company's
reach. Golten explained that the
this
to
environmentalists'
ability
to
maintain
pressure on the coal company and rancher contributed
to those parties' willingness to negotiate.
13
of
examples
a
mutually
not reached. The threats were, respectively,
was
settlement
satisfactory
are
that
event
the
in
threats
out
carry
to
commitments
lawsuit
environmentalists'
The rancher's fence and the
to kill antelope and to tie up coal reserves.
the
that
side
the
and
environmentalists
Their
go
might
they
(the
commitments
development.
through
believed,
If
killing
with
other
The
carry
party's
out
their
interests.
law suit) demonstrated, however, that
and
fence
either
satisfied
threats. The threats would not have
to
want
not
did
rancher
the
near (Schelling 1980).
is
threat
a
of
fulfillment
warn
to
Commitments are "trip wires" set up by disputants
or
antelope
coal
eliminating
commitments to carry out a threat can engender
negotiating power by leading the
other
reevaluate
to
side
its
(raise)
estimates of the costs of not settling.
A
positive
commitment
1983)
(Fisher
Control
upstream
desired
facilities)
by
over
Patuxent
manager,
The
River.
Suburban
Sanitary
of Maryland's Nutrient
state
counties
downstream
if the
riverwide
the
by the manager of a
representing
to institute a program of land treatment (an
promised
counties,
certain share of
the
for
Strategy
alternative
treatment
negotiation
a
during
D.C.
Washington,
large sewage treatment district, the
District,
made
was
other
nutrient
to
traditional
sewage
parties allocated to his district a
loadings
allowance
(Schneider
and
Sachs 1983).
Promises
and
threats must be understood and believed by disputants if
they are to work. The rancher believed
14
that
the
environmentalists
would
the
that
reserves through legal action. The environmentalists believed
coal
freeze
case
River
Patuxent
kill
more
antelope.
believed
that
the
would
rancher
The
in
negotiators
Washington
the
Sanitary
Suburban
District would institute a land treatment project.
Elegant Solutions
Roger
(1983)
Fisher
suggests
another kind of negotiating power, the
negotiating
by
power
making
proposals
exercise
can
negotiator
a
that
power of a "good solution". Fisher says
which reconcile the interests of
all the disputants.
A negotiator that proposes an elegant solution defines areas
share
partners
his
and
interests. For example, EPA used the power of an
County
the
over
siting of a new sewage treatment plant (Susskind,
treatment
system
into
was
interest
Bacow and Wheeler 1983). EPA's primary
sewage
compliance
with
the
the Clean Water Act. The
new
would
plant
encourage
intensive
agricultural area. EPA proposed that Jackson be
and
the
the
of
county
grounds that this was an efficient way to serve future development
in the area. Teton County opposed the proposal
the
Jackson's
bring
to
town proposed to locate a new plant in an undeveloped area
on
and
Wyoming
elegant solution in its negotiation with the Town of Jackson,
Teton
he
where
county
be
allowed
it
because
development
allowed
its
that
believed
in
a
rural,
remote
site
to restrict the annual number of out-of-town
sewer taps. By satisfying the interests of both local
governments
in
proposal, EPA was able to get an agreement that it too found acceptable.
15
its
CHAPTER TWO: POWER IMBALANCE
are
occur as long as the disputants believe that there
conditions are
not
relationships
gain
Extreme
unbalanced
extremely
in
from competition, and weaker parties lose so
much
so
disputants
Stronger
met.
for
negotiation will be blocked, when these
and
occur,
power
of
opportunities
negotiation.
support
resources are available around the table to
imbalances
unequal can
is
in their relationship and sufficient
conflict,
as
well
as
negotiation,
power
whose
disputants
among
Negotiation
negotiation.
prevent
necessarily
not
do
power
of
distributions
Unequal
much, that they see little potential value in negotiation.
power
relationship
occur.
Disputants
to
need
change
negotiation
and
be
may
and
both
so
maldistributed
unbalanced
extremely
Even if perceptions are changed, resources in an
that
negotiation
cannot
mediators in situations of extreme power imbalance
relative
competition
of
perceptions
the
to
the distribution of resources in order for negotiation to
occur.
Successful negotiation is possible
unbalanced.
As
as
long
and consequently do
disputants
among
whose
power
is
disputants can find areas where they can settle,
better
for
than
themselves
through
contention
or
avoidance, their imbalance does not have to block successful negotiation.
For
than
example,
the
multi-party
the
environmentalists
mediated
Board
Water
Denver
it
opposed
negotiation.
had greater negotiating power
in
a
Nevertheless,
16
complex
multi-issue,
bargaining occurred and
(Susskind,
counts.
the outcome and process were successful on a number of
1981; Susskind and Ozawa 1983; Burgess 1983; Bacow and Wheeler 1984).
In
the
1970s,
extend
the
water
dam
reservoir
and
federal
several
Foothills Project, was a water treatment facility,
the
called
extension,
the
on
agencies
South
opposed
the
in
project
spur
would
it
that
exacerbate air pollution problems, that it would harm wildlife
and
habitats and recreational lands, and that
be
and
administrative
claimed that Foothills could be
replaced by less costly water conservation measures,
growth
and
Environmentalists
River.
Platte
opponents
Project
proceedings.
judicial
The
Denver.
metropolitan
serving
system
treatment
Board (DWB) proposed to
Water
Colorado
Denver,
the
completion
would
Foothills
of
step toward completion of another controversial DWB project, the Two
a
and
Dam
Forks
Reservoir.
The
community
business
the
leaders and officials in the region supported
political
most
and
as
project
a
way
to
meet future water demand.
dispute
The
was
ultimately
settled with the services of a mediator,
Congressman Tim Wirth. Under the settlement, construction
was
allowed
at
the
site
proposed
by
measures designed to maintain stream flows
by
payment
and
of
commitment
project
exchange for mitigation
protect
to
DWB
planning
to
public
the
environment,
the
by
participation,
a
internalize the costs of environmental mitigation in future
DWB projects, termination of lawsuits, a statement by DWB
right
the
DWB of environmentalists' attorneys fees, a water conservation
program, a commitment to open
commitment
in
DWB
of
environmentalists
federal
to
have
challenged
recognizing
Foothills,
and
the
a
agencies to conduct a DWB systemwide environmental
17
impact assessment.
--
interest
primary
construction
did
also
They
Foothills.
future access to DWB decision
of
promises
gained
environmentalists
were
These
compensation.
making, mitigation of project impacts, and
built.
be
would
Foothills
since by settling they were assuring DWB that
The
stop
not
could
they
The
achieved.
was
much as DWB through settlement,
as
gain
not
--
DWB:
as
effective
as
environmentalists were not
Foothills
of
Its
environmentalists.
the
than
power
negotiating
more
had
DWB
not
the environmentalists' primary interests, however.
parties
the
between
power
in
difference
The
satisfactory negotiation. The disputants were satisfied
(Burgess
have
from
litigation
negotiation
took
less
would
more 'from
gained
Each
1983).
negotiation
(Susskind
alone
did
the
with
1983).
exhausted
were
until
all
(Susskind and Ozawa 1983). It is also likely that
the Foothills negotiation contributed to the acceptance of
disputants
The
than other alternatives probably would have,
time
considering the probability of each side continuing the dispute
avenues
outcome
than they probably
Ozawa
and
preclude a
not
negotiation
by
subsequent regional water projects proposed by DWB (Burgess
in
1983; Kennedy and Lansford 1983).
Foothills
There were some shortcomings in the
but
these
negotiation
only
was
limit
unsuccessful.
the judge presiding over
refused
to
sign
a
They
success.
the
the
proposed
The
are
process
not
and
evidence
outcomes,
that
the
settlement was severely criticized by
Foothills
case
Consent
Decree
18
trial
based
(Burgess
1983).
He
upon the negotiated
made
This
settlement.
In
tenuous.
somewhat
implementation
environmentalists have cited seven violations of the agreement
A
1984).
Wheeler
court
had
ratepayers
and
users
the
overlooked in
settlement
failures,
and
oversights
adequate
and
economical
created
was
and
the
supplies
water
(Burgess
for
for
the
future
On
the
basis
--
were
of
these
negotiation cannot be called an
Foothills
parties
continued
interests
their
result,
1983).
Regional
participate in the
to
opportunity
no
unqualified success. Nevertheless, the
opportunity
(Bacow
1983).
Ozawa
and
(Susskind
Foothills mediation at all (Susskind 1981). As a
--
the
of the environmental coalition later contested
faction
the Foothills settlement in
water
fact,
better
feel
and
off
an
negotiation (hopefully even more
successful negotiation) on DWB projects.
The Foothills negotiation, like
convergent
and
interests.
While
others,
was
Foothills
and
it
When
divergent
became
clear
could not be stopped, the environmentalists and DWB shared
an interest in the conditions under which the Foothills
built
of
EPA and the environmentalists wanted to
stop Foothills, DWB wanted the project to proceed.
that
comprised
operated.
project
would
be
They ultimately saw more value in settlement than in
continued competition.
Successful negotiation can occur among disputants that
with
respect
to
are
unbalanced
their power as long as the disputants believe that their
interests would be better served by a negotiated
settlement
than
by
its
alternatives.
When
disputants
believe
that
their
19
power
is extremely unbalanced,
it
that
thinks
to
settlement
much
is
the
through
it
opponent,
its
than
stronger
much
will
that is possible through negotiation to be meaningless
gains
great
in
opportunities
is
it
gain
in view of its
gains
any
consider
will
party
a
be meaningless when seen against its competitive losses. If
a party thinks that
consider
it
weaker
If
relationship.
the
dominate
will
contention
avoidance and
a
a
As
competition.
in
cooperative
result,
mixed-motive situation are not exploited
potentially
for the benefit of both parties.
Disputants who perceive
desire
the
lack
enter
to
relationship
power
unbalanced
extremely
an
negotiations. This is true for disputants who
see themselves as being very powerful as well as
consider
who
those
for
themselves very weak.
A
itself
considers
that
party
be much more powerful than other
to
disputants believes that it already has all
for
potential
further
negotiations
would
unnecessarily
to
its
gains
through
undermine
its
weaker
that
negotiations.
advantage,
adversaries.
For
between the Montana Power Company and the Northern
could
as
begin
not
long
as
two
new
example,
Cheyenne
by
a
that
fear
to
it
causing
700-megawatt
coal-fired
Power
electric
existing generating facilities at Colstrip, Montana. The
opposed
It may
no
concede
negotiation
Indian
Tribe
each side felt much more powerful than the
other (Susskind, Bacow and Wheeler 1983). Montana
construct
It sees
it wants.
had
proposed
to
powerplants at its
new
plants
were
the Northern Cheyenne on the grounds that they would adversely
affect air quality on tribal lands.
20
power
add
to
considered its proposal
those
to
believed that it possessed the power
of
to stop construction through provisions
Court
Clean
Federal
the
reinforced
each
for
victories
regulatory
and
less
even
be
to
facilities
It
opposition.
little
with
past,
the
Cheyenne
Northern
The
contentious.
in
site
the
at
plants
strongest. Montana Power had constructed two
itself
considered
each
but
relationship,
power
unbalanced
an
Each party thought that it was in
Act.
Air
each
side's
to
reject
perceptions of extreme superiority and blocked negotiation.
Perceptions of extreme weakness have
(money, time, and information) was one
of resources
lack
A
negotiations.
reason offered by environmentalists for their
negotiation
centered
felt
without
that
rule
negotiation power. EPA dropped the
for
rule
as
candidate
a
The
negotiation).
resources
adequate
that
clear
it became
after
the
of
suitability
the
environmentalists
negotiation
regulatory
a
to
objection
low level radioactive waste standards (the other reasons
over
around
disputants
led
also
they
for
environmentalists
lacked
regulatory
would
not
participate (Fish 1984).
In an interview for
negotiation
could
not
that
became
evaluate
the
this
presentation,
deadlocked
after
technical
aspects
Bellman
Howard
a
of
opponent's
their
abilities.
technical
mid-process in their ability
to
negotiate.
leasing
in
the
over
oil
and
gas
a
landfill
believed that they could not continue negotiating
21
They
Parties
Palisades
a
community realized that it
proposals. The community perceived an extreme imbalance between
and
described
in
lost
proponent's
their
own
confidence
another
dispute
area of Wyoming and Idaho
because
of
an
extreme
authorized to negotiate, but
to
authority
lacked
decisions needed to reach an agreement, lacked
make
ended
negotiation
1983).
(Wondolleck
cohesion
expertise in the issues, and lacked internal
The
team
negotiating
Service
Forest
U.S.
the
and
prepared
were
developers
The
power.
bargaining
of
imbalance
settlement and the dispute was taken back
without
to the courts.
Social
psychologists
upon
have
different
that
of negotiating power and competitiveness
degrees
effectiveness
the
of
negotiators.
by
bargaining power could be manipulated
greater
bargaining
bargaining
researchers
that
parties
with
power tend to behave exploitively against parties with
less bargaining power. Furthermore,
less
and
in
them
helps
also
found in experiments where motivational orientation and
have
They
It
orientation
studying the interaction between motivational
power.
the
studying
in
them
helps
This
a
("motivational
competitiveness
disputant's
(Rubin and Brown 1975).
orientation")
effects
the
and
disputant
of
power
the
between
distinction
a
draw
they
found
have
that
parties
with
power tend to submit to this exploitation unless they can
bargaining
withdraw from the relationship or enter into a coalition.
In situations of extreme power imbalance, the
of
the
stronger
party
exploitative
are probably exacerbated. The stronger party sees
no benefit in negotiating because it believes can achieve so
the
process.
Similarly,
the
is
eliminated,
or
much
outside
weaker party believes that its great losses
will not be meaningfully reduced through
negotiate
tendencies
blocked,
relationships.
22
negotiation.
in
The
extremely
motivation
unbalanced
to
power
CHAPTER THREE: PRACTITIONER RESPONSES TO EXTREME POWER IMBALANCE
Extreme imbalance of power is a problem that practitioners
resolution
face
collection
of
mediators
and
resolution.
regularly.
ideas
Six
dispute
The purpose of this chapter is to introduce a
about
negotiators
in
extreme
with
power
imbalance
experience
in
being
applied
environmental
by
dispute
practitioners were interviewed in order to understand how
they view and deal with two key problems:
(1) What should a disputant do if his negotiation power is much
less
than
his opponent's power?
(2) What
should
a
mediator
do
in
a
dispute where the distribution of
power among the parties is extremely unbalanced?
Summaries of the information gathered in the interviews
in
this
The
chapter.
summaries
are
how
order to
related
negotiators
be
and
assumptions
about
to
some
ideas
needed
detailed
cases,
others
with
anecdotes,
personal theories of practice without
criteria
for
information
to
be
presented
with
sources of bargaining power, or the objectives
of negotiation and mediation. Some interviewees
with
only
include
deal with extreme power imbalance. In
mediators
understandable,
presented
based on transcripts edited by the
interviewees. They have been further edited
on
are
much
illustrated
their
points
and still others conveyed
elaboration
or
evidence.
My
inclusion in the summary was quite broad: a practitioner had
to say it, and I had to find it relevant to the two problems into
was seeking insight.
23
which
I
An
analysis
follows
each
summary.
After
propositions, I describe how a suggested tactic
what
its
limitations
might
or
identifying
strategy
salient
might
work,
be, whether alternative approaches (that are
less expensive, more effective, fairer or more durable)
might
exist,
and
what the relationship of the idea is to others raised in the summaries.
A
very
helpful
guide
Getting To Yes (Fisher 1981),
concept,
and
to
organizing
my thoughts on these ideas was
especially the chapter on
the idea of "changing the game,"
meaningful ideas raised by the practitioners for
for
mediators
fell
under
either
BATNA
providing access to technical information.
24
BATNA.
The
BATNA
appear to encompass all the
negotiators.
Suggestions
or an area not explored in Yes,
Robert J. Golten
Robert Golten is an
(NWF)
Federation
in
attorney
who
litigation.
He
represents
works
out
the
National
Wildlife
of the Natural Resource
Clinic at the University of Colorado Law School in Boulder, Colorado.
Golten says he has been successful at developing negotiating
taking
the
initiative
to
proposed
develop
credible
his
negotiate
predicated
willingness
to
threat
help
weaker
exploitive and by
negotiators
ensuring
by
encouraging
that
weaker
to
litigate.
He
upon receipt of technical
assistance from his opponents. He thinks mediators
to
by
solutions, appealing to his
opponents' interests and maintaining a
has
power
a
have
parties to not be
stronger
parties
responsibility
receive
any
technical
resources that they are promised.
his
used
Golten
Metropolitan
Denver
experience
Water
as
Roundtable
NWF's
the
(Kennedy
illustrate negotiating power and the role of the
extremely
unbalanced.
mentalists
were
not
to
According
negotiating,
development interest they opposed. While
negotiating,
the
Denver
Water
had
the
much
began.
Only
on
the
Lansford
1983)
to
when
power
is
long
as
as
less
the
environ-
power
than the
environmentalists
were
not
Board (DWB) was ignoring the interests of
power
the environmentalists. However, said Golten, the
negotiation
and
mediator
Golten,
they
negotiator
through
negotiation
once
the
was NWF able to get DWB to
consider modifications to its development project.
25
shifted
For example, the environmentalists were challenged
to
produce
a
technical
for
proposal
meeting
Denver's
Although the environmentalists wanted no dams at all, they
could
interests
development
developed a solution
environmentalists
that
not
dissuaded
included
objected
to
other
more:
from
dams,
negotiation
during
water
felt
building
but
not
needs.
that
the
dams.
NWF
dam
the
the
Forks. Said Golten, "we had to
Two
understand what their needs were and we had to play to
them,
but
we
did
so with a lot of intelligence and energy."
Golten
explained
what
he
thinks
a
appears to be much less powerful. There
side
one
does
mediator should do if one party
are
situations,
he
said,
not have the skill, the energy or the ability to "stay up"
in a negotiation. The mediator has to "prop up the negotiator a
that
case."
He
as
the
in
pose
and
and
a
If the more powerful party over-reaches, said Golten,
bargain.
then the parties together are going to have a very
soon
little
suggested that the mediator talk and reason with the more
powerful side to make sure the side strikes a reasonable
reasonable
where
powerless
gets
party
some
fragile
agreement.
As
power, or gets angry, then the
agreement is going to fall apart, he said.
NWF is participating in the Corps of Engineers' systemwide
of
the
Denver
Water
process --
and
technical
assistance.
to
stay
future
Board's
out
After
of
court
plans.
--
using
money
borrowed
review
NWF agreed to stay in this
return
for
$65,000
for
a year, said Golten, the money had not been
provided although it was desperately needed.
been
in
EIS
from
NWF's
technical
expert
had
the personal resources of allies at the
table. The mediator was responsible for ensuring that the process
26
did
not
fall
but
Golten,
said
apart,
not or could not" get NWF the
"would
he
negotiate
to
money that NWF was promised. Nevertheless, NWF continued
in
order to protect its interests in Denver Water Board planning.
Analysis of Golten
Four
about
propositions
an
party
weaker
extremely
by
opponents
making
mediators
their
predicating
a negotiation upon receipt of technical assistance. Third,
in
in
parties
must
enforce
agreements
among
is
promised.
Fourth,
mediators
assistance
to
the party's
of
aware
interests. Second, weaker disputants can build power by
involvement
power
provides
negotiation
relevant to the foregoing summary. First,
imbalance are
power
extreme
with
dealing
technical
which
can protect extremely weaker
coercion
parties by reminding stronger parties that exploitation and
will
produce a fragile agreement.
National
Federation
Wildlife
(NWF)
felt ignored by the Denver Water
Board (DWB) prior to the Water Roundtable. Once
NWF
felt
much
powerful.
more
Was
it
the
in
negotiation,
negotiation
however,
process
that
empowered NWF? How did it get into the Roundtable in the first place?
The
power
Litigation
that
enabled
litigation
gave
NWF
should
not
be
discounted.
NWF to raise the cost to DWB of ignoring environmental
interests. Litigation made the parties interdependent.
Litigation
stopped
DWB from ignoring NWF's demands.
The
Roundtable
is
a
method
by
27
which
DWB,
NWF
and others can do
something
litigation.
attention or recognition) that NWF derives from
litigation
for
projects)
water
delayed
and
DWB to ignore NWF, NWF was
provide
to
DWB)
(primarily
able to obtain a promise from the Roundtable
of
terms
(in
costly
too
is
it
Since
effectively.
participate
to
the
in
Once
it needed still greater resources in order
that
discovered
NWF
process,
power (the
the
complements
It
interdependence.
their
about
NWF with technical assistance.
not kept. The mediator responsible
a dilemma:
with
faced
probably
power to NWF, but the promise was
further
provided
have
could
This
the mediator advocate for NWF's
Should
reason,
for
who,
not upheld their commitment), or should he continue to
have
manage the process
opponents
NWF's
technical assistance (and potentially alienate
some
was
negotiations
Roundtable
the
for
technical
the
without
assistance
(until
NWF
shows
greater need for it)?
need.
into a negotiation unless there is a definite
alter
the
resources
negotiating
there
when
dynamics,
is
no
not introduce new resources
should
mediators
that
is
response
One
some
people
threat
obvious
might
to
can
prevent
probleins
from occurring in
say,
by
infusing
the process. Mediators
provide resources (assistance) as'a correction. Another
mediators
needlessly
Mediators
response
is
that
a complex negotiation.
Mediators can enhance negotiation by using their professional
judgment
in
deciding when and how to intervene in a dispute.
The
Roundtable
that his role
is
mediator
corrective
apparently
rather
28
than
operated
under
preventive.
the first view,
Howard
Bellman's
approach in a landfill case
(one
party
was
already
resources).
The
negotiators,
apparently
parties
shared
(described
unable
Roundtable
in
below)
to
was
negotiate
mediator,
for
and
NWF's
corrective
of
technical
other
Roundtable
believed
that
process,
it was not jeopardized by NWF's lack of
the
resentment
lack
the
whatever
mutual
supplemental technical assistance. Neither was it
by
similarly
or
disappointment
in
interests
immediately
not
getting
the
jeopardized
what
it
was
promised. Perhaps these feelings will surface later.
Even if mediators have no obligation
to
parties
process
who
claim
groundrules.
to
need
to
provide
technical
them, they have an obligation to enforce
Groundrules
are
an
important
protection
disputants, especially the less powerful. Mediators can
exploitative
negotiations
was
assistance
not
change
to
all
obstinate,
into "new games" with new, principled rules. By
not providing the technical assistance, as agreed, or
the
resources
forthcoming,
the
not
explaining
was not
mediator
Roundtable
why
fulfilling his function as introducer and enforcer of process rules.
Finally,
reminding
its
a
mediator
opponent
can
that
protect
a
much
exploitative
or
less
coercive
response
to
new
motivations.
they
way
is
retaliate.
The
expectations of stronger
purpose
parties
time
or
are
even
If weaker parties become angered by an
excessively unfair settlement, a mediator can suggest,
to
by
agreements
fragile. Mediators can suggest that power will change, over
in
party
powerful
of
in
hopefully, a more durable settlement.
29
this
order
message
to
foster
will
to
find
change
negotiation
a
the
and,
Jeffrey G. Miller
former U.S. Environmental Protection Agency Acting
is
Miller
Jeffrey
partner
a
Assistant Administrator for Enforcement. Since 1981 he has been
in the Washington, DC law firm of Bergson, Borkland, Margolis, and Adler.
in
imbalance
power
extreme
described
Miller
an
overcame
extreme
imbalance
of power by affirming in court its
In
right to bring a "citizen enforcement action" against a polluter.
circumstances,
soliciting
from
help
or
enforcers and also have credible technical expertise).
with
experience
enough
mediators
to
over
authority
(who are the peers of federal
officials
state
have
(who
rare
imbalance by
extreme
overcome
have
Congress
of
members
agencies)
enforcement
companies
said,
he
of
citizens'
a
environmental enforcement cases. He describes a case in which
group
context
the
He
on
information
provide
not
does
have
how they
respond to extreme power imbalance.
Miller said that in enforcement cases,
government
derives
from
its
bargaining
the
power
of
the
ability to impose sanctions upon violators.
The government may also derive power by
using
media
the
to
inform
the
public about health and environmental dangers posed by a violator.
The
usual
countervailing power on the corporate side, he said, is the
power of information: companies
about
their
own
they
know
have
more
specific
information
compliance problems than the government. Companies often
try to convince the government
what
usually
about
that
enforcement
is
unreasonable,
given
the compliance problem. A company can also use the
30
media to publicize
layoffs
and
place
blame
on
government
enforcement
actions.
Miller
said
that
in
most
enforcement
situations, the government's
power to impose sanctions is greater than the company's
can
Government
force
a
party
to
its
change
power
to
general behavior, but no
private party can do that to the government. Private parties can
to
defend
themselves.
resist.
only
try
only questions that are open to companies are
The
how much, how long and to what extent government sanctions will apply.
However, he said, a company might be able to obtain
by
asking
people
negotiating
with authority over a regulatory agency to intervene on
the company's behalf. This is unusual, he said, but it has
forms.
The
authority
to
amendments
implementing
arguments
the
the
EPA
have
taken
several
intervenor might be a Senator or Representative with
partisan
over
power
agency's
statute
policy
also
or
been
budget
at
who
used
or
issue.
have
by
authority
with
expertise
companies
administrative proceedings or in formal and
to
propose
responsible for
officials
State
to
contradict
EPA's
(as witnesses in court or
informal
communications
with
the agency) to gain power in a negotiation. Miller gave no examples.
Generally,
or the
media,
enforcement"
community
Miller
actions
groups
said.
gain bargaining power through the courts
Citizens
against
have
violators
a
right
under
statutes, including the federal Clean Water Act. In
authority
was
to
several
one
take
"citizen
environmental
case,
a
transit
unresponsive to the demands of a community group to control
pollution from a subway construction project. Runoff from the
31
project
was
polluting
a
stream.
local
authority
transit
The
did not consider the
citizens
that
unaware
local group a legitimate force. Its management was
could bring enforcement suits, said Miller.
to
increase
its
went to court. It
acquired
a
order
In
construction
project.
injunction
temporary
right to bring a citizen enforcement action.
authority's
construction
raised
schedule,
against
affirmed
also
decision
judge's
The
power, Miller said, the group
bargaining
subway
the group's
transit
the
interrupted
It
the
the costs of the project, and
compelled the transit authority to negotiate with the community group.
Analysis of Miller
The negotiating power of the citizen group was based on
enforcement
an
bring
action,
that
but
its
right
to
was empty as long as the
power
transit authority was ignorant of the law.
The citizen
created
by
the
group
overcame
transit
extreme
the
power
imbalance
that
was
lack of awareness. They changed the
authority's
distribution of power by getting a judge to affirm their authority.
Once the citizen group's power
reassessed
the
was
affirmed.
The
transit
authority
benefits of negotiation relative to continued rejection of
the group's authority.
The
transit
authority
project could be built faster and cheaper if
32
it
decided
that
negotiated.
the
subway
The
citizen
Had
negotiating.
new
group's
they
used
the
would
have
sought
because
it
and
subway
useful
only
affirmation
project,
their
of
for
their
opponents
power (perhaps a countersuit) to
additional
protect the project. The reason the citizen
is
probably
injunction
authority to, say, stop permanently the
probably
was
power
suit
group's
was
successful
was used to develop sufficient power to negotiate, and not
to prevail over the interests of its opponent.
What
other
negotiating
ways
power?
might
the
citizen
group
have
to
group's
an
enforcement
the transit authority. Information about the citizen group's
such
authority might have been conveyed in other inexpensive ways,
mailing
its
An individual trusted by the transit authority and the
citizens might have been asked to explain the citizen
authority
developed
law
environmental
book
text
the
paper-clipped and highlighted. Recourse to
the
with
court
as
pages
relevant
was
not
by
only
the
way, but perhaps it was the most effective.
Luckily,
the
court-related.
injunction
The
only
costs
transit
sufficiently
to
to the citizen group in going to court were
group
sought
to
the
cause
to punish or retaliate against the
citizen group with a suit of its own. Again, this is probably
citizen
resent
apparently
it
did
not
authority
affirm
its
because
the
authority in order to
enforcement
negotiate.
It is probably
extremely
true,
unbalanced
as
power
Miller
says,
relationships
officials can enter into coalitions
with
33
that
companies
with
members
of
involved
federal
Congress
in
enforcement
or
state
officials.
A
coalition
between
an
influential legislator and a company
could change EPA's choice of action if enforcement options
to
desirable
legislator-company coalition were associated with potential budget
the
cuts or changes in agency mandate.
could
less
change
an
coalition
were
coalition
could
EPA
made
raise
Similarly,
decision
enforcement
less
the
credible
cost
or
a
state-company
if options
harder
to
coalition
disliked by the
implement.
Either
to EPA of unilateral action relative to
negotiation.
34
Howard Bellman
Howard Bellman is Secretary of the Wisconsin
Labor
and
Department
of
Industry,
Human Relations. He is a former mediator with the Institute for
Environmental Mediation, Madison, Wisconsin.
Negotiated settlements will be unequal, Bellman
power
ways
parties
for
powerful
alternatives
and making threats.
parties,
but
he
negotiators
to
develop
the
justified,
negotiating
power:
away from the table, promising future cooperation,
He
does
not
think
mediators
should
protect
weak
recounts a situation where he, as a mediator, assisted a
less powerful party in overcoming its lack
was
reflecting
have away from the table. Nevertheless, Bellman lists three
less
improving
says,
he
explained,
of
because
the
technical
This
shortcomings
were
party's
expertise.
hindering the negotiation.
Bellman
identified
authority),
the
economic
ability
to
resources,
prevail
in
political
litigation,
office
and the ability to
shape public opinion as relevant sources of power prior to
environmental
cases.
Because
extract
concessions.
negotiation
in
there are many ways for parties to exercise
power outside of negotiation, Bellman said,
can
(i.e.,
However,
some
most
parties
in
negotiation
parties will be able to extract
larger concessions than others because they have superior power
away
from
the table.
Weaker
parties
can
developing alternatives
increase
away
from
their
the
35
power by bargaining slowly while
table.
Bellman
also
said
that
parties
could
increase
their
power during negotiation by linking future
cooperation to favorable outcomes and
threatening
animosity
in
reaction
to pressure to accept on unfavorable settlement.
In
spite
of
the
ways
he identified that parties can increase their
power, Bellman said that the outcomes of
to
distribution
the
of
power
side
protect one side because the
deserves,
he
said.
A
prior
mediator's
job
accomplishments
table. Weaker
of
necessity
to grips with
parties
are
proportional
negotiation. A mediator cannot
to
appears
objectively about their power, to make
their
negotiation
a
be
to
is
to
parties
losing
get
aware
in
negotiation
reflect
in
negotiation
have
more
parties
of
to
the
it
than
think
fact
that
their power away from the
to
be
helped
to
see
the
scaling down their demands, developing priorities and coming
what
might
happen
if they
do
not
a
reach
negotiated
settlement.
said
Bellman
that
he has helped groups to improve their knowledge of
an issue being negotiated. This increased their power,
in
order
to
help
them
overcome
reluctance
satisfied
with
in
compromise
landfill
the
absence
of
being ,offered by
proponents
until
concessions
it
its own understanding of an issue. For example, when a
neighborhood fighting a landfill could not
and,
necessary
was
to negotiate. He said that
sometimes a party will not make proposals or accept
is
but
professional
their
consulting
afford
a
advice
could
opponents,
not
Bellman
engineer
evaluate
convinced
a
the
to give the neighborhood several thousands dollars to
hire an engineer who would review the proponent's proposals.
36
Analysis of Bellman
Bellman offers four
power
imbalance.
propositions
First,
he
says
building up their alternatives
This
enables
a
weak
to
party
to
relevant
that
to
dealing
with
extreme
weaker parties can gain power by
settlement
stall
while
negotiating
slowly.
undesirable settlement while also
postponing undesirable consequences of nonsettlement.
If
a
alternative
good
frustrated with the
pace
power
increased
its
negotiate
slowly
in
of
for
be
can
developed
negotiation,
subsequent
the
before
opponents
weaker
party
bargaining.
the
table.
They
will
parties
However,
have
who
order to develop their alternatives might undervalue
bargaining
the potential that negotiators have for increasing their
at
become
might
also
their
overestimate
power
to resist
ability
settlement while their alternatives are inferior.
Second, weaker parties can
table
by
either
settlement
or
by
This
settlement.
increase
their
the
bargaining
threatening
builds
animosity
in
return
for
a
coerced
by changing an opponent's expectations: a
power
be
costs
to
coercion
and
voluntary settlement. It also enables a weak party to increase
to
its power
at
promising future cooperation in return for an acceptable
more powerful opponent learns that there will
rewards
power
at
the
bargaining
table
through
negotiation,
supplementing
possible efforts to develop alternatives to settlement.
Third,
mediation
can
change
the
distribution of power in extremely
unbalanced power relationships. The effectiveness of mediation
37
in
dealing
extreme
with
maldistribution
of
that
distributed
imbalance
power
resources.
sometimes
If
upon
depends
technical
resources
correcting
are
so
a
poorly
side cannot evaluate its opponent's proposals, then
one
mediators can change the distribution
power
of
by
access
providing
to
technical resources.
Instead
in
to
order
possible,
When
a
of
introducing new resources,
save
the
however,
mutual
redistributing
landfill
if
the
negotiation.
parties
goal
(i.e.,
power
becomes
Bellman redistributed resources
are
Redistribution
is
only
aware of their interdependence.
is
settlement)
considered
important,
less threatening to the more powerful side.
A prerequisite to redistribution, then, is interdependence.
Fourth, the role of the mediator is not to redistribute power
Mediators
do
not
with
deal
extreme
imbalances
of
power
protect weaker parties. Weaker parties and stronger parties are
mediators
to
reach
settlement.
resources, mediation also
entails
Rather
lowering
than
always
parties'
per
se.
in order to
helped
by
redistributing
expectations
about
what they will accomplish in negotiation.
A
mediator
can
(and should) accept responsibility for the quality of
the agreements he plays a role in generating. Settlements
parties
in
an
extremely
unbalanced
power
relationship
place both sides on par with one another but the interests
must
each
be
served.
Unrealistic
between
do not have to
of
both
sides
This is something a mediator can foster. Tradeoffs
can be based on principled decision rules suggested by
example.
reached
expectations
of
38
either
the
mediator,
for
side (not just the weaker)
can be
protects
changed
by
the
weaker
mediator
party,
on
but
at the expense of the stronger. It
not
principled
protects both sides in a mutually satisfactory agreement.
39
negotiation.
This
coaching
Susan Carpenter and John Kennedy
Boulder,
Associates,
Accord
Susan Carpenter was Acting Director with
Colorado. John Kennedy is Accord's Executive Director.
and
Carpenter
Kennedy
deal
with
power imbalances when the
extreme
outside
imbalance obstructs negotiation. They solicit the help of
have
who
parties
influence over obstructionists, such as constituents, investors,
but
distribution,
and
Carpenter
said
Kennedy
never advise
they
that
the
of
employers and peers. They ask weaker negotiators if they are aware
parties to develop power away from the table.
when
Carpenter and Kennedy find that negotiation is hindered
steadfastly
it has much more (or much less) power than the
that
believes
others. In response, they have encouraged negotiations by
each
parties'
diffused
making
explicit
to cause harm, articulating the uncertainty in the
ability
of
distribution
party
a
power,
parties
encouraging
and
to
compare
negotiation with alternative processes.
and
Carpenter
to
unbalanced power distribution threatened
Denver
Water
Roundtable,
staff of the Denver Water
Board
would
the
over
Metropolitan
which
Board's
mediators
it
not
extremely
an
negotiation.
block
In
one,
(Kennedy and Lansford 1983)
certain
release
information
had control. Carpenter and Kennedy believed that the Water
opponents
went
where
situations
described
Kennedy
could
above
the
not
negotiate
the
without
information.
The
heads of the staff members by asking the Water
Board Commissioners to make possible the release
40
of
the
information.
In
Carpenter and Kennedy said that
negotiations.
in
cooperate
to
not
but
participate
to
representatives
their
Carpenter and Kennedy, instructing
of the obstacle, said
source
the
be
may
higher-ups
situations,
other
the
mediators can speak to influential peers of
order
in
obstructionist
to foster negotiation.
conteract obstructive uses
inform
said, but publicity might
Kennedy.
For
investors
manager's
mine
the
the
of
impasse. This would motivate them to speak to the manager
the
for
reason
can
mine manager might play a tough role against a regulator, they
a
example,
and
Carpenter
said
power,
of
which
publicity
generate
can
mediator
a
media,
the
Using
about negotiating more productively.
obviously
in
weaker
all
have
They
power.
respects, a mediator can only check to see that
type
of
power
a
and
has
party
they
Instead,
away from the bargaining table.
might
its
increase
parties to strengthen their position
encouraged
never
it
how
and
disadvantage
the party understands its
is
negotiation
Carpenter and Kennedy explained that if one party in a
raise
questions
--
what
how leverage might be increased -- and
allow the parties to provide the answers.
Analysis of Carpenter and Kennedy
Three
mediators
changing
diffusion
propositions
obstacles
overcome
the
of
way
disputants
power
is
posed
by
emphasized
41
to
power
remind
summary.
power
extreme
their
at
look
preceding
the
in
raised
are
First,
imbalanced
by
relationship.
Any
parties
that
stronger
exploitation and coercion can have
for
negotiation
to
generate
negative
superior
consequences.
outcomes
The
potential
relative to alternative
processes (e.g., avoidance, contending) is raised to encourage
parties
remain
the parties
in
negotiation.
Mediators
try
to
change
the
way
to
perceive their relationship.
Second, mediators solicit help from the constituents and
negotiators
opponents.
who
perceive
This
is
one
themselves
of
to
be
much
obstacles
are
are
than
their
by
mediators
to
help
in
stakeholders. If negotiation does not produce a
successful outcome, these stakeholders would
mediators
stronger
of
the more direct, active ways of dealing with
extreme power imbalance. Parties who are asked
overcoming
employers
be
adversely
affected.
The
actually expanding participation (temporarily) to deal with
an issue of wide-ranging consequences.
Negotiators might resent being overruled by their superiors.
blame
the
mediator
team.
negotiating
for
One
causing
way
to
embarrassment
or
trouble
They
may
within
the
prevent this is to inform the negotiators
before their superiors are involved. This gives the negotiators a choice.
The news media can be used to widen the
This
can
audience
public.
grand-stand.
non-public
negotiation.
a
change the distribution of power by making more powerful parties
in
unwilling to exploit their less powerful opponents
attentive
for
full
view
of
the
On the other hand, an audience might lead disputants to
Concessions
settings.
mediator probably has
are
Neither
to
sometimes
sunshine
determine
who
42
easier
nor
the
to
shade
offer
work
audiences
in
smaller,
all the time. A
each
negotiator
by (and in what direction) before changing the
influenced
most
be
would
openness of a negotiation in order to change the power relationship.
Third, and finally, mediators raise questions to weaker
them
encourage
to
order
perceptions and expectations about negotiation relative
disputants
should
mediator
a
or
developing its alternatives to settlement
undermining
stems
probably
warning
The
alternatives.
weaker
a
advise
actually
not
idea
is
disputant
on
this
with
connection
to its alternatives. One caveat raised in
that
to
helps
It
role.
coaching
a
available to it. This is a consulting or
change
the sources of power that are
about
think
to
in
disputants
its
concern
from
neutrality of such advice. Another concern might be that such
opponent's
the
about
will
advice
lead to contentious behavior.
It
on,
is
say,
disputants
hard
suing
(see
for a mediator to justify specific advice to a negotiator
Bellman)
when
a
among
redistributed
be
can
resource
A
opponents.
maldistribution is hindering
specific
collective efforts, but positive interdependence
the
and
of
development
power away from the table appear incompatible.
If
a way to counsel disputants on building power away from
there- was
the table without encouraging
such
Maybe
advice.
that
contention,
take
would
improving one's own alternatives to
about
reducing
opponent's
an
opponent's
alternatives
perhaps
the
should
be
contending) context.
43
placed
give
could
form of specific advice about
settlement
alternatives.
mediators
only
but
Advice
in
a
general
about
advice
reducing
negotiating
(not
an
a
Thomas Colosi
Vice President of National Affairs for the American
is
Colosi
Thomas
Arbitration Association in Washington, DC.
Colosi says that disputants who are extremely weak
"lamb's
the
share"
a
of
enter into coalitions in order to
settlement,
arbitration.
disputants,
among
Mediators
says,
Colosi
doubts" in the minds of) parties
"create
doubts,"
says
not
should
Coldsi,
who
the distribution of power
change
may
they
although
refuse
litigation
in
interests
their
negotiation from greater power, or pursue
or
accept
either
can
challenge
settle.
to
("create
mediators
When
they should only use information provided
by the parties.
Colosi explains that
who
determine
is
before
stronger
in
negotiation
their
particular
through confrontation. For example, in the
call
a
work
stoppage
to
test
its
begins,
to
conflict. They do this
sector,
labor
try
disputants
union
a
might
to pull its members out of
ability
production.
When a party learns through confrontation
its
opponent
Each
it
is
stronger
than
in-some ways and weaker in others, it negotiates to convince
its opponents that its strengths
dispute.
that
are
the
more
relevant
ones
do
doubts."
44
this,
says
Colosi,
their
perceptions
party tries to persuade the other to accept its
of the distribution of power. They
in
by
"creating
Negotiators
who
do
not have sufficient power to "create doubts" have
three options, according to Colosi. They can accept the "reality"
negotiation
coalitions
parties
negotiation
by
gets
the
share;"
lamb's
they
can
in
into
enter
other weak parties in order to increase their negotiating
with
power; or they
weaker
"lamb
the
that
can
use
litigation
to
win
through
or
arbitration.
litigation
and
The
potential
arbitration
for
encourages
making stronger parties doubtful about their strength over
the long run.
The purpose of negotiation is
sometimes
hindered
from
settlement,
says
between
Parties
are
settling by the way one or both parties perceive
their power relationship. This is not an extreme
disagreement
Colosi.
the
parties
over
who
areas). When parties are unable to agree what
power
imbalance,
but
a
has more power (and in what
each
party
is
capable
of
doing relative to the other, a mediator is needed.
Mediators
help
parties in reaching settlement by "creating doubts." A
mediator advocates to one side, or both, the perceptions about
by
the
can be
opponent.
reached
mediator's
A
held
power
party is challenged to suggest a way that settlement
without
accommodating
opponent's
his
perceptions.
The
is for the parties to adopt similar perceptions, and
objective
consequently to settle.
Colosi thinks that mediators
the
exchanges
needed. Colosi
than
they
would
discourages
themselves)
into
have
should
help
disputants
to
"recapture"
had if the mediator's assistance was not
mediators
negotiations.
45
from
In
introducing
general,
elements
(other
when mediators create
doubt, Colosi believes
only
use
arguments
raised
by
the
mediators become involved with disputants
when
Specifically,
disputants.
should
they
who disagree about power, Colosi says, the only valid
perceptions
of
how
that relationship should be structured are those of the parties.
If
try
mediators
introducing
his
change a distribution of power (for example, by
to
own
perceptions
parties)
Colosi
limitations.
of
exercises
and
creating
doubts),
(they may try to assert
stronger parties will resist
weaker
when
weaker
parties
that
warns
Colosi
their
power
says,
against
will become unrealistic about their
weaker
parties
might
risky
attempt
their empty, "mediator-inspired" power. However, he gives no
examples of when this has ever actually happened.
Analysis of Colosi
Colosi offers three
imbalance.
First,
much
weaker
parties
arbitration. Third, mediators
mind
with
extreme
power
the distribution of
change
disputants
can
change
also
of power by using (or threatening to use) litigation and
distribution
party's
dealing
can
weaker
power by forming coalitions. Second,
the
about
propositions
about
can
"create
doubts"
in
a
much
stronger
his ability to prevail in the long run -- but only if
the weaker party gives the mediator information to use
in
creating
those
doubts.
Unfortunately,
Colosi
provides no cases to illustrate or substantiate
his opinions. However, his first two propositions are supported
sense
and
the
other
practitioners
46
by
common
(Miller on coalitions in enforcement
cases and Golten on litigation).
Coalitions enable weaker
resources
against
power of legal
extended
with
common
right
and
authority
(raising
its
(if
it
wins)
opponent's
negligent
to
combine
opponents.
An
opponent
is
thus
original estimate of the benefits and costs
and
the
threat
of
cost of nonsettlement). Both
can give a much less powerful party the ability to
of
interests
common opponent. Litigation gives a weaker party the
a
conflict
parties
of
capture
the
attention
forced to reevaluate his
negotiation,
relative
to
alternatives.
Colosi's
and one not.
themselves
third
proposition
is comprised of two parts, one acceptable
Mediators can change the
too
powerful
good reasons why
to
mediators
minds
negotiate
should
of
disputants
productively.
introduce
who
consider
However, there are
whatever
information
they
have at their disposal.
When
a
perceptions
expectations
to
negotiate
omnipotent;
thinks of
mediator
creates doubts, he is trying to change a disputant's
(in
discussion,
for
our
himself
distribution
of
power)
and
settlement. A disputant who considers himself too strong
productively
that
about
needs
negotiation
as
too
to
might
weak
to
be
convinced
that
he
is
not
favor his interests. A disputant who
negotiate
can
be
shown
unnoticed
strengths and opportunities.
Mediators
should
not
be
bound in creating doubts by the information
provided by disputants. The information
47
may
not
be
accurate.
Mediators
may
have
experiences to draw from and could warn or assist less
relevant
experienced parties of
them.
Mediators
could
provide
disinterested
may
possibilities
be
able
information
position
may
that
might
not
occurred
have
to
to introduce technical resource people who
that
all
give
sides
him
a
could
use.
perspective
A
mediator's
that neither party
(emotionally involved in the dispute) can obtain.
When assisting extremely
mediator
who
unbalanced
responsibility
or
accurate,
reach
agreement,
a
a
conflict
into
settlement),
he
for the implications of that change. To the event that
the doubts a mediator creates is based on
and
to
creates doubts should be fostering wise settlement. Since he
is changing a situation (from impasse
has
parties
mediator
can
be
information
confident
disputants.
48
that
he
knows
is
true
he is not misleading
CONCLUSION
distributions
Specific ways that practitioners have changed
of
power
and contributed to successful negotiation are:
e
Mediators
went
from the
thought
over
employers
the
and
their
that
heads
of
constituents
control
of
negotiators (solicited help
of
the
information
negotiators)
who
gave them absolute
power.
*
A
mediator
convinced
a
opponent
negotiator's
to
pay
for
technical assistance which the negotiator could not afford.
*
Negotiators
won
an
injunction
against
a polluter and affirmed
their authority to enforce federal water pollution control laws.
These examples illustrate principles
that
negotiators
and
mediators
need to know in dealing with extreme power imbalance.
*
A
disputant
can
change
an extremely imbalanced distribution of
power by:
- improving his alternatives to negotiation;
- making
his
opponent's
alternatives
to
negotiation
desirable;
- using a mediator to help "change the rules of the game."
49
less
*
A
mediator
can
foster
negotiation
among
disputants
in
an
extremely unbalanced power relationship by:
- changing
parties'
and
perceptions
expectations
of
negotiation relative to alternatives;
- helping parties acquire access to technical
are
There
unbalanced
other
cases
that
distribution.
power
specific
ways
were
available
practitioners can deal
These
but
are
which
assistance.
with an extremely
suggestions
for
still
likely given the
seem
which
no
foregoing analysis. They are:
*
A
weaker
disputant
can
predicate
his
participation
in
a
negotiation upon the receipt of technical assistance.
*
Mediators
can
enforce
agreements
that
promise
technical
(or
other) assistance to weaker negotiators.
*
Weaker
disputants
can
seek allies whose interests they share in
order to form a coalition for negotiating.
*
Mediators can highlight the potential
some
causing
harm
to
that
each
party
has
for
the other. They can warn stronger parties
that exploitation produces fragile agreements.
*
Mediators can solicit the involvement of peers of
order
to
negotiators
in
convince negotiators to bargain in good faith. They can
50
focus wider attention on the negotiations for the same
reason
by
inviting the media to observe the process.
*
A
weaker
disputant can negotiate slowly while building its power
away from the table.
51
REFERENCES
Bacow, Lawrence S. and Wheeler,
Resolution. New York: Plenum.
Michael.
1984.
Environmental Dispute
Bellman, Howard. Telephone Interview March 22 and 23, 1984.
"Placing
1986.
R.
Suzann
Thomas-Buckle,
Buckel, Leonard G. and
Environmental Mediation in Context: Lessons from "Failed" Mediations."
Environmental Impact Assessment Review (forthcoming).
Burgess, Heidi. 1983. "Environmental Mediation
Susskind, Bacow and Wheeler, eds.
(The
Foothills
Case)"
in
Carpenter, Susan and Kennedy, John. Telephone Interview March 14, 1984.
Colosi, Thomas. Telephone Interview April 2, 1984.
Colosi, Thomas. 1983. Negotiation in the Public and Private Sectors: A
(November/December)
27:2
Core Model. American Behavioral Scientist,
pp.229-253.
Fish, Dianne Holliday. 1984. "The Pre-Negotiation Phase of Regulatory
Negotiation: The Case of the Low-Level Radioactive Waste Rule." M.C.P.
thesis, Massachusetts Institute of Technology, Cambridge, Massachusetts.
Fisher,
67-70.
Roger.
1985. "Beyond YES." Negotiation Journal, 1:1 (January) pp.
Fisher, Roger. 1983. "Negotiating Power: Getting and Using Influence."
American Behavioral Scientist, 27:2 (November/December) pp. 149-166.
Getting to
Roger and Ury, William.' 1981.
Fisher,
Agreement Without Giving In. New York: Penguin Books.
Yes:
Negotiating
Golten, Rotert. Telephone Interview March 16, 1984.
Gusman, Sam. Telephone Interview March 17, 1984.
Water
"The Metropolitan
Kennedy, W.S.D. and Lansford, -Henry. 1983.
Management."
Conflict
through
Allocation
Resource
Roundtable:
Environmental Impact Assessment Review, 4:1 (March) pp. 67-78.
McCarthy, William. 1985. The Role of Power and Principle
Yes." Negotiation Journal, 1:1 (January) pp. 59-66.
in
Getting
to
Miller, Jeffrey. Personal Interview March 20, 1984.
Bruce M. 1985. "Reassessing Getting to Yes and Principled
Patton,
Negotiation,
(January). Program on
Negotiation." Working Paper 85-6
Harvard Law School, Cambridge, Massachusetts.
Raiffa, Howard. 1982. The Art
Massachusetts: Belknap Press.
and
52
Science
of Negotiation. Cambridge,
Raven, Bertram H. and Rubin, Jeffrey Z. 1976.
in Groups. New York: John Wiley and Sons, Inc.
Psychology:
Social
People
Rubin, Jeffrey Z. 1983. "Negotiation: An Introduction to Some Issues and
Themes."
American Behavioral Scientist, 27:2 (November/December)
pp.
135-147.
The Social Psychology of
Rubin, Jeffrey Z. and Brown, Bert R. 1975.
Bargaining and Negotiation. New York: Academic Press.
Schelling,
Thomas
1980.
C.
The
Strategy
of
Conflict.
Cambridge,
Massachusetts: Harvard University Press.
Schneider,
Agreement."
Peter and Sachs, Andrew. 1983. "The Patuxent River Clean-up
The Environmental Forum, 2:1 (May) pp. 39-43.
the
Susskind, Lawrence, 1981. "Environmental Mediation and
Problem. Vermont Law Review, 6:1 (Spring) pp. 1-117.
Susskind,
Lawrence;
Bacow,
Lawrence
Resolving Environmental Regulatory
Schenkman Publishing Company.-
and
Wheeler,
Disputes.
Accountability
Michael,
Cambridge,
eds. 1983.
Massachusetts:
Susskind, Lawrence and McCreary, Scott. 1985. "Techniques for Resolving
Coastal Resource Management Disputes Through Negotiation." Journal of the
American Planning Association, 51:3 (Summer) pp. 365-374.
Susskind, Lawrence and Ozawa, Connie. 1984. "Mediated Negotiation in the
Public Sector: The Planner as Mediator. Journal of Planning Education and
Research, 4:1 (August) pp. 5-15.
Susskind, Lawrence and Ozawa, Connie. 1983. "Mediated Negotiation in the
Public Sector: Mediator Accountability and the Public Interest Problem."
American Behavioral Scientist, 27:2 (November/December) pp. 225-279.
Susskind, Lawrence and Weinstein, Lawrence. 1980-81. "Towards a Theory of
Boston College Environmental Law
Resolution."
Dispute
Environmental
Review, 9:2 pp. 311-357.
Talbot, Allan R. Settling Things: Six Case Studies
Mediation. Washington, DC: The Conservation Foundation.
in
Environmental
Wheeler, Michael. 1985. "Protocols for Debriefing Practitioners." Working
School,
Law
(January). Program of Negotiation, Harvard
Paper 85-2
Cambridge, Massachusetts.
Wondolleck, Julia. 1983. "Oil and Gas and the Public Lands: Conflict and
Resolution. Ph.D. Thesis, Department of Urban Studies and Planning,
Massachusetts Institute of Technology, Cambridge, Massachusetts.
Wondolleck, Julia. 1985.
Disputes."
Environmental
(December) pp. 341-356.
"The Importance of
Environmental Impact
53
Resolving
in
Process
Assessment Review, 5:4