TRIM SIZE: 165 x 235mm
7
CHAPTER
Facilitating the Negotiations
Introduction
On Negotiation Generally
Mediators’ Roles in Negotiations
Mediators’ Roles in Positional Bargaining
Mediators’ Roles in Promoting Interest-based Bargaining
Special Techniques in Negotiation
Dealing with Impasses
Mediator Methods
Negotiation Tracking 4 Mediators
Lessons for Mediators
207
208
211
213
226
233
246
249
250
251
A royal stalemate
Meg has recently joined an expanding UK-based firm called Buckingham that
produces royal widgets, called Rydgets. She will be working closely with Kat, who
has been with Buckingham for more than a decade and is considered quite ‘the
success’ by Buckingham’s matriarch and board of directors. Before Kat joined
the firm, the Rydget business had suffered a number of setbacks and, despite
a devoted but ageing consumer base committed to the original product, was
struggling with new markets. Kat has been responsible for promotion and sales of
Rydgets which meanwhile have expanded to 100 different models of the original
product.With Meg joining the team, Kat is expected to allocate a substantial part
of her Rydget portfolio to her new colleague so she can concentrate on other
royal tasks. In addition, Meg, who comes from a communications background, has
206
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
206
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.1
Facilitating the Negotiations
been asked by the Board to develop a marketing and communications plan for
the Rydgets. To date there has been no structured plan in place; rather, Kat has
intuitively promoted the brand and associated herself and her image with it. Kat
has enjoyed the popularity associated with the expansion of the product and
her name has become synonymous with Rydgets. While Kat knows she can no
longer manage the portfolio on her own, she is wary of allocating too many of
the 100 Rydget models to the eager Meg, who she feels does not yet understand
the Buckingham culture. Moreover, with Meg designing the marketing and
communications strategy, Kat’s public corporate identity is at stake — this is not
just about her popularity but her standing within the firm and her opportunities
for career progression and influence within Buckingham. On the advice of one of
the Board members, Camilla, they engage the services of a mediator to help them
work through the negotiation that lies before them.
Introduction
Mediation can be defined as a form of assisted negotiation — the mediation
procedure is an extension and elaboration of the unassisted negotiation procedures.
Mediators are not negotiators in the direct sense, but are able to use their expertise
to improve negotiations the parties are primarily conducting. If there are any ‘golden
rules’ for contemporary mediators, one would be that they need to become aware of
both the ‘art’ and the ‘science’ of negotiation in order to perform their role adequately.
7.1
Mediation and the role of negotiation: What the Standards say
The NMAS Practice Standards recognise negotiation as a key part of the
mediation procedure: see ss 2.2(e), 3.1(a) and 4.1. The NMAS Practice Standards
s 10.1(a)(iv) and (v) identify ‘communication patterns in … negotiation’ and
‘negotiation dynamics in mediation’ as essential knowledge areas for competent
mediators. In terms of skills, the Standards s 10.1(b)(v) specify ‘negotiation
techniques and the mediator’s role in facilitating negotiation and problemsolving’. In Singapore, the SIMI RTP Application s 2.3 identifies ‘interest-based and
position-based negotiation’ as training topics mediators must qualify in before
receiving Level One accreditation under SIMI standards.The HKMAAL Guidelines
for Mediation Course Providers s (A)(i)(b) lists ‘face-to-face negotiation’ as an
element of its training philosophy and ‘Negotiation Skills and Mediation Dynamics’
as a suggested component of an HKMAAL-approved mediation course: s (B)(1).
How mediators use negotiation expertise to assist parties is not, however, a
straightforward matter. This chapter deals with the mediator’s role as facilitator
of participants’ negotiations. As with the previous chapter, it provides only a
brief overview of general negotiation strategies and styles and deals mainly with
the particular roles of mediators in the negotiation procedure. More insights into
207
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
207
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.1
MEDIATION: SKILLS AND TECHNIQUES
negotiation can be gained from the extensive specialist literature on this subject.
Mediators are in fact privileged observers of negotiation practice conducted by the
parties and their advisers.
On Negotiation Generally
The stages of negotiation
Researchers Adair and Brett (2005) have identified four stages of negotiation.
Their work also establishes that each of the four stages includes cooperative and
competitive styles as well as interest-based and positional strategies (see ‘Approaches
to negotiation’, below). Further, although the pattern and frequency of sequences
vary across the four stages depending on culture and context, negotiators from
diverse cultures move through these same stages regardless of how much time they
spend negotiating.
The four stages of negotiation are summarised here (Alexander, Howieson and
Fox, 2015: 51–3):
7.2
Stage 1: Relational positioning
The first stage of the four-stage process is called relational positioning. Adair and Brett
refer to this as the stage where the parties engage in both competitive posturing
and relationship building as they test each other to see whether the other will be
competitive or cooperative. Negotiators in this opening stage are usually focused on
creating an aura of power and are looking to persuade the other negotiator that they
hold the stronger position in the negotiation. They are also trying to influence the
other into an appreciation of their person and status, and the value (or not) of the
relationship. This type of jockeying for power and influence is usually reciprocated by
the other party and, if continued as a ‘tit for tat’ pattern, can be destructive, but if it
tapers off towards a sequence of sharing information and showing mutual respect for
the other, then the negotiation can evolve into a constructive one. Once negotiators
transition from competitive positioning to relational positioning, they can begin to
focus on the substance of their negotiation and can move to the second stage of the
process: the exploration phase. Negotiators with an established relationship tend to
move through the relational stage more quickly than first-time negotiators. At the
same time, the opening stage can still be competitive even if the parties already have a
long-standing association. However, at some point, constructive negotiators, regardless
of their relationship, become frustrated with the posturing and jockeying, and move
into the second stage primed to share priority information.
Stage 2: Exploring issues and interests
The second stage of the process, the exploration stage, tends to be more cooperative
than the first stage.The negotiators focus more on sharing information for the purpose
of exploring interests and issues, rather than angling for power and influence. The
negotiators reciprocate with information about what is important to them (priority
information) and engage in a detailed discussion of the issues. In this stage, interestbased negotiators might be more willing to exchange information than positional
negotiators, but the research suggests that parties who tend to share information
readily, and early in the negotiations, are more likely to come to an agreement.
208
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
208
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.2
Facilitating the Negotiations
It is in this stage that negotiators concentrate on building trust and begin to
contemplate possible options without yet putting them on the table. The reciprocal
dance that takes place in this stage is one of developing the relationship. At this stage,
interest-based negotiators are usually looking for ways to create value, while positional
negotiators are more inclined to be looking for ways to convince the other negotiator
of the strength of their position and to claim value.
Stage 3: Generating options
Adair and Brett found that the focus of the third stage takes on a competitive edge
as the negotiators move into bargaining mode. They engage in a dance of offering
solutions and finding ways to support or reject with arguments options put forward.
Options usually emerge during the latter part of the second stage, so the transition
to the third stage, which is to generate options that will help solve the issues, usually
occurs naturally.
By now, negotiators have usually come to an understanding about what the other
negotiator’s issues and interests are and their order of priority and begin to sense that
solutions are possible. They begin to engage in a robust discussion of the options —
alternating between focusing on integrating information and influencing the outcome.
Research shows that positional strategies usually peak about two-thirds of the way
through a negotiation, when negotiators begin to trade offers and counter-offers.
Comparing offers with their goals, bottom lines and walk-away alternatives turns the
negotiators’ attention back to their power and position as they decide whether to
accept or reject the offers — or how to persuade the other party, using independent
criteria and rational argument, to improve their offers. During these sequences of
offer and counter-offer, rational argument and persuasion, negotiators are concerned
with both value creation and value claiming and they must work hard to balance the
tension. Negotiators can easily turn to competitive styles as they position themselves
to claim more of the ‘pie’. They must balance this with using cooperative tactics to
ensure that the pie is large enough to create enough value for them in the first place.
Stage 4: Reaching solutions
The focus of the fourth stage is similar to that of the third stage, but more intense
in terms of the tempo of the dance. As the negotiators work towards an outcome —
agreement, partial agreement or no agreement (and there is usually a sense of which
one it will be by the fourth stage) — they increase their sequence of offers and
rational persuasion, and increase the intensity of the communications.The negotiators
at this point are working towards making decisions and getting a good deal. The offer
and counter-offer sequence and concession-making occurs with greater frequency —
there is less discussion about the benefits of each offer and more ‘trading’. At this
stage, the parties typically have sufficient information to construct good offers and
be reasonably confident that each offer will be better than their alternatives; if not,
then this is also the stage when parties might walk away. The fourth stage is when
negotiators reach solutions and, although they might be exhausted, when strong and
skilled negotiators are able to keep the negotiation balanced between power and
interests in order to maximise gains.
209
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
209
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.3
MEDIATION: SKILLS AND TECHNIQUES
Approaches to negotiation
As indicated previously, the four stages of negotiation are relevant regardless
of negotiation approach. The literature distinguishes several different approaches to
negotiation: see Alexander, Howieson and Fox (2015: 4–46) and Boulle and Field
(2018: 117–33). Different terminology is used to refer to the different approaches.
As this is not a text on negotiation itself, reference is made to only two broad approaches
to negotiation, namely positional bargaining and interest-based bargaining, as a basis
for discussing the role of mediators within each style.
The two approaches are not, however, mutually exclusive and a single negotiation
event may display elements of both. The approaches are described, illustrated and
assessed in Table 7.1.
7.3
Table 7.1: Positional and interest-based negotiation
Style of
negotiation
Some features
Benefits
Risks
Positional —
also known
as Solution,
Competitive
or Distributive
Negotiation
Extreme opening
offers.
A series of
incremental
concession-making
by the parties.
Compromise
somewhere between
opening positions.
May be accompanied
by competitive
tactics (bluffs, lies,
threats and tricks)
designed to ‘create
doubt’ in mind of
other party.
If inadequate
concessions by
parties, there is no
settlement.
May require little
preparation.
Relatively easy to
perform.
May offer
acceptable shortto medium-term
solutions.
Culturally
understood in
many contexts.
Does not require
many resources.
May initially
impress client
when used by
professional
adviser.
Allows each side
to track other’s
concessions. Can
be successful for
more powerful
party.
May not be efficient in
exploiting all potential
value.
May escalate the
conflict with
inexperienced
negotiators.
May overlook key
interests which would
permit settlement.
Parties may not be able
to cross the ‘last gap’.
Could damage parties’
relationship and leave
long-term bitterness.
Where relationship is
damaged, the risk
of non-compliance
with agreement may be
greater.
210
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
210
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.4
Facilitating the Negotiations
Table 7.1: Positional and interest-based negotiation — cont’d
Style of
negotiation
Some features
Benefits
Risks
Interest-based —
also known as
Collaborative,
Integrative or
Constructive
Negotiation
Focuses on parties’
personal and
commercial needs,
interests and priorities.
Avoids extreme
positional claims and
‘bottom line’ focus.
Involves a procedure
in which both parties
have the chance to
be heard.
Focuses on
preserving functional
business or personal
relationships.
Involves search for
additional value or
‘chips’ over which to
negotiate.
Attempts to achieve
creative, mutually
beneficial outcomes.
Deals with real
needs and interests
of the parties,
relational and
procedural as well
as substantive.
No competitive
tactics to create
problems.
Likely to retain or
improve parties’
relationship.
Possibility
of creative
settlements.
Aims to maximise
value at the
negotiation table.
Aims to create
high degree of
commitment to
agreement.
Requires extensive, often
counter-intuitive skills in
a conflict situation.
Needs time and
resources.
In focusing on interests
rather than positions,
negotiators may set
sights too low and miss
out on substantial gains.
May require disclosure
of sensitive information.
Does not work unless
all parties engage
in interest-based
negotiation.
Could lead to
exploitation if other
party is positional.
May still leave ‘last gap’
which is difficult to cross.
More detail on the elements and dynamics of these two bargaining approaches
follows in the discussion of the mediators’ role in negotiations.
Mediators’ Roles in Negotiations
Mediators can assist parties with their negotiations before mediation, during the joint
sessions, during the separate sessions and shuttle stages, during the closing stages and even
after mediation has terminated.They can educate, advise, demonstrate, coach and rehearse.
How they go about these tasks involves the use of discretion, important judgments in
relation to their impartiality and a sense of timing: there are restrictions on what can be
done in joint meetings, while there is greater latitude for mediators in separate sessions.
There will also be some trial and error as mediators revise or refine the hypotheses on
which interventions were made in the light of their impact and effectiveness.
In most negotiations there will be scope for mediators to:
• assist participants with preparing to negotiate during pre-mediation contacts.
Guidance is most useful when it is specific with plans tailored to the particular
mediation. Flexibility is required as preparation occurs in the context of
incomplete information;
7.4
211
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
211
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.4
MEDIATION: SKILLS AND TECHNIQUES
•
•
•
•
encourage open-mindedness in relation to negotiation approaches;
help with developing cohesive strategies within negotiation teams;
shepherd parties through the rituals and stages of negotiation;
emphasise common ground between parties to provide a positive tone to the
negotiations and a platform for further agreement;
act to pre-empt unhelpful negotiation tactics, such as seating disadvantages,
staged interruptions or the ‘no authority’ strategy;
coach parties on negotiation skills and techniques, such as beginning with
procedural issues, opportunities and risks associated with making first offers,
generating options, packaging proposals, the tactics of concession-making
(see box below), reality testing offers, assessing alternatives to settlement, and
managing expectations about the process and likely outcomes;
get the parties to deal with ‘easy’ issues first, for example sorting out basic facts
and documentation;
anticipate post-settlement blues (subsequent regrets about an MSA) and advise
on ways of dealing with this syndrome;
consider strategies for dealing with outside parties who need to ratify agreements
or who could undermine their success.
•
•
•
•
•
Concession contradictions
There is evidence that plaintiffs involved in positional bargaining prefer a large
number of concessions from the other side, over and above a satisfactory
outcome, as the concessions provide ‘evidence’ of their endeavours in getting
the defendant to keep making additional offers — it provides a procedural utility
over and above the substantive utility reflected in the dollars.
Unfortunately, the converse also applies — evidence suggests that defendants in
these situations prefer to get to their ‘resistance points’ in a few steps without
making too many concessions, as these could suggest weakness and encourage
the plaintiff to expect more.
The contradictions contain a delicate challenge for mediators: they need to educate
both sides about these realities, but without appearing to favour one or other.
Regardless of the approach to negotiation, it is useful to negotiate about
procedural matters first before moving to matters of substance. This makes practical
sense in that matters of venue, timing, identity of participants and other related issues
need to be sorted out before negotiations proper begin. But more than this, decisionmaking on these issues provides parties opportunities to learn about each other’s
negotiation styles, to have early negotiation successes and to develop confidence in
their ability to negotiate successfully with each other.
7.5
212
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
212
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.6
Facilitating the Negotiations
Mediators can encourage the ‘procedure first’ approach. Likewise, in most styles
of negotiation it makes sense to deal with the ‘easier’ substantive issues first and to
postpone more difficult issues for later.There may also be other sequential approaches
more suitable in the circumstances, for example dealing with issues requiring
immediate short-term solutions before addressing long-term issues. Mediators can
educate parties about this and other realities of negotiation.
Mediators’ more specific roles can be best described in the context of the two
approaches to negotiation referred to in the previous section.
Mediators’ Roles in Positional Bargaining
Table 7.1 refers to features of positional or distributive bargaining.This approach
to negotiation is commonly encountered in mediations which involve deciding ‘who
gets what’ in relation to money, shares, chattels, hours of Christmas Day and other
benefits whose number or quantity are restricted in size. In this kind of negotiation
there are limited compatible or mutual interests, and the more one side obtains the
less the other will receive — the ‘more for you must mean less for me’ scenario. For
example, in the Royal stalemate scenario introduced at the start of the chapter, if Meg
wants 70 Rydgets and Kat wants to give her only 30, each extra Rydget over 30 that
Meg gains will entail a loss of one for Kat.These situations are referred to as ‘zero-sum’
disputes — if you add the gain of one party to the loss of the other party, it will equal
zero (Meg’s gain of 10 Rydgets and Kat’s loss of 10 give a balance of zero). Positional
bargaining is encountered in buying and selling in the bazaar, and in disputes in which
parties take the view that it is only about money or another single value and there
is no future relationship between them, such as workers’ compensation mediations.
The typical pattern of positional bargaining is depicted in Figures 7.1 and 7.2
using the Rydget scenario.
7.6
Figure 7.1: Positional Bargaining I
Positive bargaining range
0
10
20
30
40
60
50
RP (M)
OO (K)
70
80
100
OO (M)
RP (K)
OO = opening offer
Kat (K)
RP = resistance point
Meg (M)
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
90
Ch.7.indd
213
213
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.6
MEDIATION: SKILLS AND TECHNIQUES
Figure 7.2: Positional Bargaining II
Negative bargaining range
0
10
20
30
40
50
60
70
RP (M)
OO (K)
80
90
100
OO (M)
RP (K)
OO = opening offer
Kat (K)
RP = resistance point
Meg (M)
The distance between the two resistance points (sometimes referred to as
bottom lines) RP(K) and RP(M) constitutes the bargaining range. In Figure 7.1,
Kat’s resistance point is 55, which means that she is prepared to give Meg up to 55
Rydgets. Meg’s resistance point is 45; in other words, she is prepared to accept a
minimum of 45 Rydgets — after all she has not been in the Buckingham business for
very long. So there is a positive bargaining range (also referred to as a zone of possible
agreement or ZOPA) of 10 Rydgets and high hopes for a right royal agreement.
7.7 Alternatively, there can be a negative bargaining range, also known as a
bargaining gap, illustrated in Figure 7.2. Here Kat is prepared to give Meg up to 40
Rydgets, but Meg will not settle for anything less than 60! In this situation there is a
bargaining gap of 20 Rydgets.There is unlikely to be a settlement through positional
bargaining, and unless one or both parties change their resistance point a stalemate
may ensue.
Lewicki et al (2014) make the following propositions about the effect of the
resistance point on positional bargaining:
1. The higher one party’s estimate of the costs of delay or an impasse to another,
the stronger their resistance point will be.
2. The higher a party’s estimate of their own costs of delay or impasse, the weaker
their resistance point will be.
3. The less value a party places on an issue, the lower their resistance point
will be.
214
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
214
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.11
Features of positional bargaining
There are predictable features of positional bargaining: extreme opening offers,
incremental concession-making and signalling.
7.8
Extreme opening offers
Both parties make extreme opening offers (points 00(K) and 00(M) in Figures
7.1 and 7.2), in the expectation that this will impose pressure on the other side; they
keep something up their sleeves with which to trade and bargain in the hope that
this will lead to a more favourable point of compromise for them. Studies show
that in many cases an extreme positional demand (ambit claim) at the beginning,
provided it does not fall in the ‘insult zone’ which results in the other party leaving
the negotiating table, will result in a better outcome for that party. However, this
point cannot be calculated with exact precision.
7.9
Incremental concession-making
There is a series of ‘incremental concessions’ from each side, sometimes
referred to as a ‘negotiation dance’. This involves each party making a number of
concessions from their original position, and on each subsequent position, until they
reach agreement (somewhere between points RP(K) and RP(M) on Figure 7.1) or
until they refuse to concede any further and fail to settle (somewhere between points
RP(K) and RP(M) on Figure 7.2).
In attempts to influence the other side to move off their opening position, and
each succeeding one, parties use tactics such as threats, anger, intimidation, ridicule
and tricks. Parties use these tactics, where they have the aptitude, power and incentive
to do so, in order to ‘create doubt’ in the mind of the other party. Where there is an
inequality of bargaining power the tactics may be successful for the more powerful side
in achieving an outcome closer to their own preferred outcome, which is somewhere
between their opening offer and their resistance point. The more vulnerable party
makes concessions as a result of the pressures and tactics applied by the other side, as
they alter perceptions about their negotiation prospects and their own best interests.
7.11 While there is no uniformity in concession-making, the following patterns
can occur.
• Matching: this often occurs at the beginning of concession-making, where each
side matches the other’s concessions (for example, Kat concedes five Rydgets,
Meg five), and at the end of the negotiations, where parties are prepared to
match each other by ‘splitting the difference’.
• Mismatching: this occurs where there is an impasse in the negotiations, and the
weaker party, or party more in need of a settlement, makes a large concession to
prevent the negotiations from failing and the other side, sensing ‘victory’, makes
a smaller one (for example, Kat concedes 10 Rydgets and Meg two).
• Decreasing increments: this means that each successive concession is smaller
than the previous one (for example, 10, five, three, two Rydgets), and usually
7.10
215
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
215
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.11
MEDIATION: SKILLS AND TECHNIQUES
takes longer to obtain (‘half the size, twice the time’), though occasionally the
successive increments are of equal size (for example, five, five and five Rydgets).
Signalling
The pattern and sequence of concessions involves a form of signalling between
the parties in conveying to each side some insight into the other’s intentions. Thus
a series of equal concessions (for example, 10, 10 and 10 Rydgets) suggests that
further concessions can be anticipated, while diminishing concessions (for example,
10, six and two Rydgets) suggest that the relevant party is putting on the breaks and
reaching its resistance point (RP(K) or RP(M) in the figures). Of course, there is no
science to this kind of prediction, and it is indicative only of the way negotiations
might develop.
There may be a ‘last gap’ that is difficult, and in some cases impossible, to bridge.
At this stage each party feels it has conceded too much already, neither party wants
to make the final concession, and both are concerned about ‘losing face’. The last
gap is depicted by the negative bargaining range between points RP(K) and RP(M)
in Figure 7.2.
The following behaviours characterise effective positional negotiators:
• ensure their opening offer gives them sufficient room to make concessions;
• make the first offer if they want to set the tone and thereby ‘anchor’ the
negotiations;
• wait for the other side to make the initial offer if they want to get a sense of how
the other will engage in the ‘negotiation dance’;
• make concessions grudgingly and with timed intervals, to allow the other party
to feel as if they have had a real ‘win’;
• make concessions in ever-decreasing increment size;
• keep the other party’s expectations low by creating doubt in their minds;
• link a concession on one issue to a reciprocal concession on another, for example
Kat gives Meg another five Rydgets if Meg associates Kat’s image with the
Rydget marketing campaign;
• link concessions to justifications so the concession feels like a ‘transaction’ in
itself rather than just giving up something. For example, Kat and Meg are three
Rydgets apart; Kat concedes these to Meg after Meg points out that the main
buyers for these models are from the European continent and that post-Brexit
adjustments and complications in relation to sales to these markets are likely to
be extremely time-consuming.There is also a risk that sales to these markets will
drop. This technique is used to save face and to cross the last negotiation gap.
Finally, effective positional negotiators know that the amount of the opening
offer in combination with the number and size of concessions together impact on
the negotiated outcome. During preparation therefore it is useful to work through
scenarios involving different potential opening offers and concession-making
7.12
216
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
216
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.15
Facilitating the Negotiations
patterns. This type of preparation enables negotiators to respond promptly, and with
awareness of the consequences, to the other side’s opening and concession-making
tactics.
The context and benefits of positional bargaining
There are several reasons why parties might engage in positional bargaining
in certain contexts. The system has deep cultural roots in that it is the pattern of
negotiation encountered in the marketplace, for example in buying a toaster online, a
television in an annual sale or a second-hand Tesla. It is a system of negotiation that can
be conducted with little preparation and which does not assume any qualifications or
require any special skills. Once commenced, positional bargaining is difficult to get
out of, as it is a reactive model of negotiating with continual ‘tit-for-tat’ exchanges
between the parties. It also has some short-term emotional advantages where there
is a need to appear strong and forceful to the opposition.
Where parties are in competition with each other over scarce resources, it is
logical for them to make extreme opening offers (points 00(K) and 00(M) in the
figures) and to be secretive and uncompromising in the negotiations. If they are not as
extreme as possible at the beginning of the negotiations, the chances of their having
conceded too much by the end are increased. Positional bargaining appears to make
sense in terms of protecting each party’s information — in competitive situations it
does not make sense to disclose information unilaterally, to make concessions and to
be exploited.
7.14 This is illustrated in a negotiation exercise called ‘The Prisoner’s Dilemma’
played at DR workshops; it shows that where one party is collaborative (interestbased) and the other is competitive (positional), the former will lose out. To
avoiding losing, the collaborative party is likely to resort to competitive strategies
as well, but where both parties adopt competitive strategies they both lose out.
The object of the exercise is to discover ways of getting both parties to engage in
collaborative bargaining which serves both their interests simultaneously and leaves
them both better off than if they had bargained competitively — see further on
this dynamic 12.11–12.13.
Positional negotiation is more appropriate where there is little likelihood of a
future relationship between parties.This includes personal injury disputes, dissolution
of partnerships and debt claims. It can also be more likely where the negotiating
parties are using intermediaries such as lawyers, or where they have to appear tough
in the eyes of outside persons, such as managers and union officials in industrial
disputes, and ratepayers in planning and development disputes.
7.13
Mediators’ interventions in positional bargaining
Mediators can potentially intervene in some aspects of positional bargaining,
and these interventions might also be appropriate for interest-based negotiation.
7.15
217
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
217
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.16
MEDIATION: SKILLS AND TECHNIQUES
Making the first offer
There are different views as to the benefits and shortcomings of making the
first offer in positional bargaining. Assume, in the following illustrations, that the
parties are bargaining over the price of a used Hyundai Ionic, a classic positional
bargaining situation.
Where a party wishes to set one end of the bargaining range they may make the
first offer and attempt to influence the other, making it as extreme as the circumstances
allow. This can have an ‘anchoring’ effect on the perceptions of the other side and
influence them to make a less extreme opening offer than intended. As an illustration
the seller of the Hyundai Ionic might reflect, ‘I was going to ask $30,000 for this
early EV classic, but they got in first and offered only $20,000 so perhaps it would
be wiser for me to ask for only $25,000.’ Thus the first person to propose a price
influenced and anchored the financial parameters of the negotiation. However, if an
opening offer is too extreme ($15,000 for the EV) there is a risk that the other party
will walk away or attempt to re-anchor with an equally extreme response to signal
their contempt ($35,000).
7.17 Alternatively, some parties resist making first offers as they wish to calculate
their opening in light of the other side’s opening bid to make the point of final
compromise more favourable to them than to the other party. Thus the seller could
reason, ‘They only offered $15,000, so now I know that I should begin at $35,000
and not $30,000 so I have more “concession-making space” up my sleeve to force up
the price.’Which approach a party adopts will be determined by a number of factors,
including their perception of how powerful they are in relation to the other.
7.18 Mediators may have little control over who makes the opening offer in a
mediation. However, they need to be aware of the different approaches and tactics
that may be operating. Normally there is not a problem in having one of the parties
make the first offer in positional bargaining. Occasionally both parties adopt the
delay strategy, the defendant saying, ‘Tell me first what you want’, and the plaintiff
saying, ‘Well tell me first what you are prepared to offer’. Where neither is prepared
to begin, mediators can suggest that both parties give first offers confidentially to
the mediator, without knowing what the other is offering, and the mediator then
exchanges them simultaneously between the parties. In this arrangement there are no
‘first’ offers, only two concurrent offers with neither affected by the other.
7.16
The type of opening offer
It is useful to elaborate on two concepts referred to above, namely the ‘insult
zone’ and the ‘credible zone’. In Figures 7.1 and 7.2, the ‘insult zone’ refers to points
above the resistance point (RP) of Kat and below the resistance point (RP) of
Meg which would be insulting to the other party. Thus a claimant may say to a
respondent who makes an opening offer in the insult zone, ‘You have offered me so
little it is a joke; I am leaving, let me know when you are serious’.The ‘credible zone’
begins where the insult zone ends, though there can clearly be no precise point of
differentiation between the two.
7.19
218
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
218
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7. 20
Facilitating the Negotiations
There are two ways in which parties can open positional negotiations:
1. With high/soft or low/soft opening offers, where a party’s opening is as far as
possible from their preferred outcome (the points PO(K) and PO(M) in the
figures) without being in the insult zone (the points RP(K) and RP(M)). Here
the expectation is that both parties will move off their high/low openings to a
series of more reasonable positions during the course of the negotiation — in
this sense their first offers, whether high or low, contain ‘soft’ numbers.
2. With reasonable/firm opening offers, where a party’s opening is close to both
their preferred outcome and resistance point (the relevant party’s PO, OO and
RP points are close together). Because this is regarded as a reasonable offer
by the proposing party they stick to it assiduously and there is little scope for
concessions in the negotiation. In this sense, the figures contained in their
opening are ‘firm’ as opposed to ‘soft’.
7. 20 There are potential roles for mediators in relation to the types of opening offers.
They can educate parties about the different kinds and explain their implications.
A claimant who has made a high/soft offer needs to understand why the reasonable/
firm approach of the other side leaves him making all the concessions and feels as
though he is negotiating against himself: see case illustration below. Mediators can
point out to parties the problems of opening in the insult zone, that it may cause the
other side to walk out or lead to a reciprocal insult from the other, or give them a
reputation of negotiators whose first offers need not be taken seriously. Mediators can
further educate clients unfamiliar with the low/soft strategies of large defendants, such
as insurers, to prevent this exacerbating the conflict: ‘I can see you are aggrieved by
their offer but most corporate players start like that; it’s part of a standard negotiation
strategy. If you hang in for a while, they are likely to improve their offer.’
Case illustration: Mortgages R Us and different negotiation strategies
In Darwin a debt-recovery mediation was conducted between Len, the Manager
of Mortgages R Us, and Danielle, the borrower. The positional bargaining was
initiated by Len, who suggested that Danielle could make reduced repayments of
80 per cent of the value of her interest and capital repayments for the remainder
of the year. After this initial offering, Len made four further concessions, finally
suggesting repayments of 65 per cent for a fixed period of 36 months. Danielle
opened by offering to pay 50 per cent over the entire mortgage period and
not a cent more. Throughout the morning session Danielle remained firm on
her offer and did not move from this position. At this point the mediator called
for a separate meeting and Len revealed that he was enraged that Danielle
was not prepared to ‘play fair’ and he had been forced to ‘negotiate against
himself’. The mediator explained that Danielle was following the ‘reasonable/
firm’ approach, which allowed Len to begin to understand Danielle’s position.
In the joint session Len displayed more patience with Danielle and this allowed
both parties to make some small concessions before they finally settled.
219
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
219
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.21
MEDIATION: SKILLS AND TECHNIQUES
To avoid the above predicament mediators can educate parties adopting the
reasonable/firm approach to signal this fact, for example by saying, ‘After careful
consideration, in light of all the circumstances, taking into account these factors, and
in terms of the only resources I have, I am asking to make adjusted repayments of
50 per cent of the current monthly repayments …’. Some lawyers hold themselves
out as reasonable/firm negotiators who only ever make ‘one offer’.
7.21
Timing of offers and acceptances
There is a negotiation maxim that ‘The right offer at the wrong time is
the wrong offer’. Despite being rather simplistic, the maxim is useful to bear in
mind. Where a negotiating party receives a ‘favourable’ offer too early in positional
bargaining there is a tendency to devalue what the other side has offered (called
‘reactive devaluation’) and attempt to secure additional value from the negotiations.
This might involve them back-tracking and trying to recover even more than they
initially sought. Thus in the used Hyundai Ionic illustration, if the purchaser were to
offer the seller the ‘ticket price’ of $30,000 immediately on seeing the desired EV, the
seller might decide that he had asked for too little and should have asked for more:
‘I was prepared to accept $27,000 but the offer of $30,000 suggests the car is more
valuable than I thought.’ A possible way for a seller to handle this situation might be
to explain that the price did not include the battery system and other accessories, for
which an extra sum would be required.
7.23 The same principles apply to acceptance of offers. Where an offer is, in the
perception of the offeror, accepted too eagerly by the offeree the former may have
second thoughts about the wisdom of their offer and attempt to complicate the
negotiations in other ways. Thus in the Hyundai Ionic example, if the purchaser
offered $15,000 and this was immediately accepted by the seller, the former might
become suspicious about the quality of the vehicle: ‘He seemed to jump at that offer
rather quickly, perhaps I should do some more due diligence here.’
We have encountered commercial negotiators who, in conscious or unconscious
application of the above maxim, deliberately idle away some time before making or
accepting offers.They are waiting for the ‘ripe’ moment.While this is hardly an exact
science, mediators can discuss with parties the possible implications of making offers
or accepting them at particular times in the negotiations.
7.22
Responding to claims and offers
Negotiations are complicated systems of actions, reactions and interactions
with many moving parts. Where a negotiating party is unhappy with a claim or offer
there is a risk that they will react in a retaliatory way and exacerbate the conflict. For
example, in the debt recovery mediation involving Len and Danielle, Danielle’s claim
to make repayments of 50 per cent of the total repayment sum could invoke a strong
negative reaction from Len. The mediator can adopt strategies to avoid problems in
situations such as these and assist Len to make the rejection in a constructive way.
Thus the mediator may suggest that the response be made in a way that identifies
the level of principle at which there is agreement, before rejecting the detail: ‘Well,
7.24
220
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
220
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.27
I accept that you are not able to meet the full repayments, and can work on that basis,
but I cannot agree to reduced repayments of 50 per cent at present.’
Alternatively, where there is only a partial rejection, the form of the response
could identify first areas of agreement and then specify what is being rejected: ‘Well,
I can agree to allow you to make reduced repayments for the next 36 months, but
we need to do more work on the final percentages.’
7.25 Mediators can also coach parties in the art of informing each other why an
offer is being rejected so that it can be better understood: ‘The reasons why I would
not be able to accept repayments of 50 per cent are because the loan was for a
substantial amount of money, you only took out the loan a year ago and such a large
reduction in repayments would extend the repayment period beyond a reasonable
term, and probably into your retirement.’ The reasons provide an indication of what
the offeror needs to work on (in the example, the amount and number of repayments),
in order to persuade the offeree to settle.
Packaging and presenting offers
Because of difficulties referred to in the previous section, mediators assist
parties to package offers and counter-offers in the most constructive way in order
to avoid negative reactions from the other side. For reasons already explained, offers
are most effective when accompanied by an explanation, rather than consisting of
cold figures alone. The explanation serves to give some ‘rationality’ to the offer and
creates an opening for the offeree to respond constructively to it. Likewise, offers
packaged in such a way that the most palatable parts are heard or seen first and those
least attractive to the recipient last tend to meet with more positive responses. This is
referred to as ‘gift wrapping’ the proposal and is particularly feasible where mediators
are shuttling offers and counter-offers between parties located in separate rooms.
Thus a shuttle mediator might say, ‘Danielle, when I tell Len about your request for
50 per cent repayments, it would be helpful if I could first indicate what you would
agree to in relation to his claims on the time period over which he is willing to
accept reduced repayments, before I disclose your repayment figure to him.’
7.26
Patterns of concession-making
Reference has been made to possible patterns of concession-making in
positional bargaining. It was indicated that where the concessions are equal in size,
more might be expected, and where they are decreasing in size, that party might be
reaching their limit.Where a larger concession follows small ones, this might indicate
a last desperate attempt by the conceding party (or mere confusion).
Mediators keep written records of parties’ concessions as they are the honest
bookkeepers of the figures. This assists them in assessing the extent to which parties
might be approaching their resistance points. It can also be used to show one party
how much the other has conceded — it is a common feature of negotiations that
each side feels they have conceded more than the other and objective facts and
figures can challenge this perception. In the above scenario the mediator might say,
‘You might not realise this, Danielle, but Len has come down from demanding an
7.27
221
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
221
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.27
MEDIATION: SKILLS AND TECHNIQUES
80 per cent repayment at the start of mediation to one of 65 per cent now. That’s a
15 per cent shift, not to mention the extension of time.’
Dealing with positional bargaining tactics
Practice standards and positional bargaining tactics
The NMAS Practice Standards require mediators to be familiar with the
predictable tactics associated with positional bargaining and this involves an
understanding of ‘negotiation dynamics in mediation, including manipulative and
intimidating tactics’: s 10.1(v).
In a similar vein, but more prescriptive, the Hong Kong Guidelines for
Professional Practice of Family Mediators provide that mediators ‘shall not
permit manipulative or intimidating negotiating techniques’ (s B II c).
Finally, the SIMI Code of Conduct s 5.7 requires mediators to ‘take reasonable
steps to prevent any conduct that may invalidate an agreement, or create or
aggravate a hostile environment’, which may include positional tactics.
7.28 Table 7.2 illustrates some of the tactics associated with positional bargaining
and possible mediator interventions to deal with them. Mediators have a range of
tools in their toolboxes for dealing with positional tactics. It will be a question of
judgment as to which is appropriate and there can never be any certainty that a
specific intervention will work. Mediators rely on the strength of the mediation
procedure and their understanding of negotiation to counteract the use of these
tactics.
Table 7.2: Positional tactics and mediator interventions
Positional tactics Illustration
Possible mediator
interventions
Point out the
Bluffing, intimidation ‘Danielle, if you
downsides of a
or threats by more
don’t wake up
particular strategy,
powerful parties
to your senses
particularly in the
I’ll send the
repossession guys separate sessions.
to kick you out
and you’ll be
sleeping in a tent
next month!’
Illustration
‘You know, Len,
in my experience
those kinds of threats
normally make the
other side even more
resistant.’
Alternatively, ‘Len,
from what I have
seen in the past, that’s
likely to be countered
with an equally
bullish response.’
222
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
222
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.28
Table 7.2: Positional tactics and mediator interventions — cont’d
Positional tactics Illustration
Possible mediator Illustration
interventions
Personal attacks
‘Danni, you’re not Enforce the
‘Listen, Len and
the sharpest tool
mediation guidelines Danielle, at the start
in the box, love,
and intervene
of our session you
so stop trying
strongly when they
both committed to
to play smart,
are breached.
resolving this matter
otherwise things
in a civil manner and
are going to get
that you would not
very unpleasant!’
put each other down
or use threats or
intimidation. Could
I ask you both at this
point to reconfirm
that you are willing
to proceed with the
mediation following
these principles?’
Stonewalling and
‘Len, what I have Encourage interest‘Danielle, we have
refusal to make
been offering the based negotiation
been throwing
concessions
last hour is more
techniques, possibly
around different
than I can afford; in separate session.
options for a while
there’s no way
now but you don’t
you are going to
seem to like any
squeeze another
of them. Let’s put
cent out of me!’
them to one side
for a moment. Tell
me, what’s really
important to you in
all of this?’
Data manipulation
‘Danni, times
Ask for a party’s
‘Len, that’s an
regarding facts,
are hard! The
reasoning for a tactic; interesting claim
figures, evidence and economy is on its or how a demand,
you’ve put forward.
other relevant factors knees and we’re
stance, position or
Tell me about how
just trying to hang offer is supported or you arrived at this
in here. What
rationalised. Probe
amount and the
with increasing
for details.
precise criteria you
inflation and
have used to calculate
interest rates —
it.’
it’s just breaking
my back.’
223
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
223
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.28
MEDIATION: SKILLS AND TECHNIQUES
Table 7.2: Positional tactics and mediator interventions — cont’d
Positional tactics Illustration
Possible mediator Illustration
interventions
Last-minute add-ons, ‘Okay, okay, I’ll
Anticipate some
‘Okay, Len and
where negotiators
sign the flaming
of the tactics and
Danielle, we are
request an item that agreement,
attempt to pre-empt now getting much
hasn’t been discussed Len, but only if
them by alerting the closer to reaching
before
you give me a
parties generally to
a final agreement.
Titanium credit
their possibility.
So to avoid any late
card account.’
surprises could you
advise each other at
this point whether
you wish to raise
any matters that are
not already on the
agenda?’
The ‘phantom’ trade, ‘Well, what I
Identify the tactic
‘Danielle, earlier
in which negotiators really wanted was (‘name the game’) as today you mentioned
pretend that items of a Mortgages R
a way of shaming the trading a digital alarm
little real importance Us digital alarm
relevant party.
clock for a Premier
to them are of
clock, Len, but
Customers Club card.
great value when
I suppose that
This does not sound
conceded
doesn’t matter if
very realistic to me.
you fix me up
Do you think it’s
with a Premier
wise to persist with
Customers Club
this request?’
card instead.’
A disingenuous claim ‘Well, that looks
Remind parties
‘Len, let’s take a
of lack of authority, fine in principle, of progress made
minute to pause and
aimed at imposing
Danni, but I need and their aims and
review the progress
pressure or gaining
to ask my wife,
objectives. Assist the made so far … How
an adjournment
Maureen — she
parties to assess the
does that fit with
actually owns
alternatives should
the objectives you
Mortgages R
an agreement not be outlined earlier …? If
Us; I’m just the
reached at mediation. for some reason you
manager.’
weren’t able to walk
out of here today
with an agreement,
what would happen?
How could those
objectives be
achieved? Or would
they have to be
abandoned?’
224
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
224
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.29
Table 7.2: Positional tactics and mediator interventions — cont’d
Positional tactics Illustration
Possible mediator Illustration
interventions
Imposing
‘Look, Danni, I
Anticipate some
‘We have all agreed
unreasonable or
am a very busy
of the tactics and
to set aside seven
sudden deadline
man — I need to attempt to prehours for this
take the kids to
empt them in the
mediation. Can I
swimming in
Mediator’s Opening confirm everyone’s
10 minutes, so I
Statement.
commitment to this
need an answer
timeframe?’
now. Is it yes or
no to repayments
of 62 per cent?’
Calculated delays and Delaying
Use separate
‘Danielle, Len seems
stalling
counter-offers
meetings to ascertain to be taking longer
and taking an
how the targeted
than anticipated
inordinately long party is dealing with consulting with his
time for separate
the other’s tactics.
wife and his lawyer.
client–lawyer
How do you feel
consultations.
about this and what
can we do about it?’
Creating doubt
While mediators do not negotiate as such with the parties, they may become
involved in ‘doubt creation’ tactics associated with positional bargaining. The object
of creating doubt in a negotiating party’s mind is to cause them to move off their
current positional claim to one more likely to result in settlement. There can be
doubt creation over the facts, over evidence, over rules and precedents, over likely
court outcomes, and even over the personality and behaviour of the other party.
This is also referred to as the mediator acting as the ‘agent of reality’. Some of the
ways in which the mediator can exercise the doubt creation function are discussed
in 8.12–8.16.
7.29
Mediators’ obligations
In relation to all interventions, mediators must remain mindful of their obligations
under their relevant code of practice. For example, where one party seems to
be putting unreasonable pressure on the other to accept its offer, the relevant
standards in Australia, Hong Kong and Singapore stipulate that mediators
ensure all parties have sufficient time to assess options and make the necessary
consultations with professional advisers and others. In this regard the SIMI
Code of Conduct s 5.4(b) requires mediators to ensure that ‘all parties have
equal opportunity to … where applicable, seek legal or other counsel prior to
finalising resolution or settlement’. The HKMAAL Family Mediator Guidelines
225
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
225
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.29
MEDIATION: SKILLS AND TECHNIQUES
s II.b requires the mediator to ‘ensure that each party has had an opportunity to
understand the implications and ramifications of available options. In the event
that a party needs either additional information or assistance in order for the
mediation to proceed in a fair and orderly manner, or for an agreement to be
reached, the mediator shall refer the parties for this additional information or
assistance’. The IMI Code of Conduct s 4.2.2 requires that mediators provide
‘the opportunity to seek and obtain legal or other counsel before finalising any
resolution’.
Mediators’ Roles in Promoting Interest-based Bargaining
Mediator training and literature focuses on the roles and functions of mediators
in shifting the parties’ negotiations away from positional and towards interestbased bargaining. This is because interest-based bargaining principles underpin the
mediation system and are reflected in various mediation guidelines and standards.
7.30
Mediators’ duties to encourage and support negotiations
The NMAS Part III Practice Standards s 7.6 requires that ‘a mediator must
encourage and support negotiations that focus on the participants’ respective
interests, issues and underlying needs and must encourage participants to assess
any proposed agreements accordingly and with reference to their long-term
viability’. The HKMAAL Guidelines for Mediation Course Providers elaborate
extensively, suggesting the mediators receive training in: ‘skills to understand
and shift parties’ negotiation styles; identify issues for resolution; highlight and
use common ground; focus the parties on underlying interests/needs; facilitate
mutual understanding; develop and reality test options and settlement proposals;
avoid or manage impasses; and assess potential offers against alternatives to
mediation settlement’: s (B)(1)(f).
Interest-based negotiation can be encountered in any sort of mediation and is
most typically the dominant approach in mediations involving partnership conflicts,
business disputes, organisational conflict, planning disputes, parenting disputes, and in
many other situations in which there is an ongoing relationship between the parties.
To support an interest-based negotiation approach, mediators typically assist
parties to prepare for the mediation by identifying their substantive, relational and
procedural interests, ascertaining external and objective standards that may be relevant
to a solution, and considering a range of possible options for resolution as well as
alternatives to settlement. This information can be incorporated into a mediation
memo as described in Chapter 4.
7.31
226
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
226
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.34
Focusing on interests instead of positions
Case illustration: Belinda and Bill
A dispute has arisen between AI-Savvy Corp Ltd (AI-Savvy), a large software
corporation in Sydney, and senior client adviser, Belinda Mates. Belinda is well
known in the international AI sector and has been with the company for more
than five years. She now intends to set up her own AI company as a sideline
business based in the same office tower as AI-Savvy. When Bill Ng, CEO of
AI-Savvy, became aware of Belinda’s plans, he immediately stopped her salary,
claiming she had breached her terms of employment. According to Belinda,
however, there is no clause in her contract precluding her from engaging in
other employment or conducting business outside of her regular employment
with AI-Savvy. Bill and Belinda agree to come to mediation.
The distinction between the terms ‘positions’ and ‘interests’ has been explained
above. It was shown that positional claims can readily lead to impasses and can obscure
what people really want. Shell (2006) points out that skilled negotiators spend up to
four times the amount of time thinking about the needs and interests of the other
parties than average negotiators.
Mediation provides a system that can change the focus to underlying interests,
that is the motivating needs, priorities, concerns and fears of the parties. When the
focus shifts to interests, the problem can be better defined and better understood by
all concerned. The disclosure of interests also reveals what is really motivating parties
and what is preventing resolution of the dispute. As people are motivated mainly by
self-interest, this approach opens the way to dealing with the dispute creatively in
terms of parties’ own priorities.
7.33 The main stratagem of interest-based bargaining is to put more ‘negotiating
chips’ on the table, to create value in the negotiations before value is claimed or to
make the ‘negotiation pavlova’ bigger before it is cut up.
Additional negotiating chips may be added by:
• identifying shared goals or interests to encourage parties to move on to find
options to meet those goals or interests;
• searching for differences in priorities or timeframes, which can be used to
facilitate trade-offs;
• allocation of risk according to each party’s level of risk tolerance.
This approach seeks to avoid tensions that can arise where value claiming impedes
the creation of value and where value creation risks exploitation by value claiming
tactics: Lax and Sebenius (2006).
7.34 Thus where the parties make positional claims over money, an interest-based
approach would seek to disclose the interests underlying that claim and make them
7.32
227
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
227
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.34
MEDIATION: SKILLS AND TECHNIQUES
subjects of the negotiation. In the scenario between Belinda Mates and Bill Ng, the
‘chips’ could include:
• Belinda Mates retaining her professional reputation;
• AI-Savvy and Bill Ng saving face in the industry;
• restoring positive business relationships between AI-Savvy, Bill Ng and Belinda
Mates;
• AI-Savvy avoiding precedents in relation to other employees who may want to
leave and set up competing business;
• keeping international links with the current global clients for both sides through
Belinda Mates;
• keeping open opportunities for future business between the parties, for example
opportunities for Belinda Mates to offer consulting services to AI-Savvy;
• Belinda Mates generating sufficient revenue to pay the high rents in the office
tower where she intends to set up shop; and
• a quick and confidential settlement for both parties.
These multiple interests, dealing with the present and the future, provide a
more constructive basis for fashioning a negotiated settlement than the single-issue
obsession with financial damages.
7.35 The role of the mediator is therefore to try and induce parties to negotiate
in terms of their own and each other’s interests. One way in which mediators can
get parties to focus on interests is to ask them why a position is important to them.
Mediators can also help parties try to persuade each other on the mutual benefits of
requests, rather than attempt to convince the mediator of the justice of their cause. In
some cases mediators might be able to indicate why certain settlement options could
in fact be in both parties’ interests. Thus in a family mediation, the option of having
child support paid directly by the contact parent to the resident parent, rather than
through the agency, could satisfy different interests of both parties: the resident parent
obtains the funds sooner and the contact parent avoids administrative complexities.
Understanding interests
Understanding interests also requires mediators to assist parties to sort and
prioritise their interests. By identifying areas of common ground, they are more
likely to work towards proposals that meet those common interests. In the case of
divergent interests, or different values placed on the same interests, trade-offs are
possible. For example, one party might value the amount of payment, the other
the form or timing of payment. In a dispute between a company and a departing
manager, the company might be willing to pay $300,000 in severance provided that
it is payable in shares but less than $300,000 if paid in cash. If the manager has no
preference between cash and shares, both sides benefit from the former.
7.37 To help parties identify and understand each other’s interests, mediators might
resort to ‘role reversal’.This involves asking one party through a series of questions to
7.36
228
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
228
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.40
imagine himself or herself in the position of the other so they can better understand
the other’s interests. This can be uncomfortable for some participants and might be
resisted. Explaining the benefits of role reversal might overcome intransigence.
Considering creative settlement options
Mediators can encourage parties to be creative in fashioning their settlement
outcomes. In order to be creative there needs to be a broad consideration of possible
options. This involves three facets: developing options, evaluating options and
selecting options. This rarely happens in an orderly textbook fashion but there is an
important underlying principle: good negotiation requires expansionary thinking
before contractionist thinking takes over. Mediators can educate parties about
this principle and its possible applications. Therefore in property distribution in a
matrimonial or partnership mediation, a positional approach might lead to a crude
50:50 division, whereas a creative interests approach could allocate specific chattels,
assets or other forms of property to the side which places the most value on them.
7.39 In assisting parties to be creative in developing options mediators might use
a direct strategy in the above scenario, asking, ‘Bill and Belinda, can you think about
and suggest possible options?’ They may do it analogously, by asking, ‘Belinda and
Bill, can you think of ways in which other people have dealt with the problem in
question?’ Or they may proffer a contribution themselves by saying, ‘I can share some
creative ideas with you about what others in similar situations have considered …’.
Other techniques for encouraging creativity include:
• use of analogies and metaphors;
• use of concepts and ideas from other disciplines;
• interacting in a safe space away from ‘business as usual’;
• use of role reversal;
• taking time for silence, breaks and ‘staring into space’ (apparently Einstein was
known for spending many office hours staring into space — and he was certainly
a good problem-solver);
• using multiple intelligences, for example conduct separate sessions while going for
a walk with each party or get the parties to draw or map out options (see 3.26);
• challenging assumptions with curiosity;
• encouraging parties to visualise options; and
• reframing problems from a different perspective.
7.40 There are factors rendering it difficult for parties alone to develop options
creatively. One is the assumption that there is only a single answer to the problem, a
second is the perception that there is a ‘fixed pavlova’ to negotiate over, and a third
is the tendency for participants in dispute to judge negatively options mentioned by
the other side (‘negative transference’).
7.38
229
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
229
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.41
MEDIATION: SKILLS AND TECHNIQUES
Brainstorming
Brainstorming is a technique designed to overcome these obstacles and to
assist parties to think creatively and constructively about settlement.
The objective of brainstorming is for parties to develop and consider a wide
range of options for resolving the problems at hand. In brainstorming parties are
invited to think creatively and laterally and to propose settlement options, however
unrealistic they might be, without having to justify or defend their suggestions.
Other parties are not allowed to comment on, evaluate or criticise the option to
reduce defensiveness and inhibitions and to provide for risk-free ideas without any
side being committed to specific proposals. The technique is designed to get parties
to feed off each other’s insights and to illustrate the wide number of conceivable
ways of dealing with the problem.
7.42 The guidelines for the first stage of brainstorming are as follows:
• all ideas, without exception, are allowed;
• parties are encouraged to feed off one another’s ideas;
• no interruption or criticism of others is permitted;
• no evaluation or ranking of options is allowed.
During the second stage of brainstorming the parties:
• categorise the options into relevant groups;
• develop interest-based criteria for evaluating them;
• discard the worst options, in terms of developed criteria;
• undertake cost-benefit analyses of the best options.
7.43 Mediators can suggest brainstorming as a way of moving forward when
negotiations have bogged down. When the first stage of brainstorming is complete,
the options can be evaluated and selected in terms of their desirability, practicality and
cost. Even where this brings parties back to the unpalatable option first thought of,
this option is shown to be the only realistic one in the circumstances and it therefore
acquires more credibility — the comparators make it relatively more attractive.
In the dispute between AI-Savvy (Bill) and Belinda, brainstorming could lead to
a range of creative options. For example, it could be agreed that Belinda establishes
her own business but at a different location identified by AI-Savvy and at a lower rent
AI-Savvy is able to negotiate with its market-based power. In addition, Belinda will
be engaged as a consultant to AI-Savvy on a 20 per cent basis for one year.The parties
could also identify areas of potential work that Belinda would not undertake as a solo
consultant and Belinda could offer these first to AI-Savvy on a subcontracting basis.
7.41
Separating people issues from problem issues
During the course of negotiations personality factors, stereotypes and
destructive emotions can become entangled with the objective merits of disputes.
Each party portrays the other negatively, dubious motives are attributed and personal
7.44
230
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
230
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.46
accusations and recriminations occur. Even where there is a negotiated MSA, ongoing
relations may be damaged by the destructive exchanges.
Mediators may decide it is necessary to deal first with the ‘people’ side of a
problem before the substantive issues can be considered.This involves acknowledging,
validating and giving face to each side. As Fisher, Ury and Patten (2011: 32) put it,
‘Be hard on the problem and soft on the people’. Mediators can provide a lead in
showing respect for all parties and in acknowledging deep-seated emotions such as
loss and sadness. Ideally this will lead to situations in which disputants stand aside
from the interpersonal aspects of their dispute and see it as an objective problem
outside of themselves. If this happens, they can jointly face a common task and build
a working partnership that did not exist before.
7.45 Mediators can use the following techniques to promote this joint working
system (with reference to the dispute between AI-Savvy Bill and Belinda):
• Using appropriate metaphors to describe the mediation process, for example:
‘Bill and Belinda, we are here to build a bridge not erect a wall and I can help
you do that together …’
• Setting up the room and other environment aspects of a mediation to symbolise
the fact that the parties collaborate against the problem and not engage in armed
combat with each other, for example using round or oval tables.
• Using a board or flipchart paper to focus parties’ attention on the ‘problem’
and away from personal antagonisms: ‘Belinda and Bill, we are trying to look
for answers to the fourth question on the board — How can mutual business
referrals between you be managed and by whom?’
• Using appropriate terms and language to emphasise the mutuality of problems
and the need for both sides to resolve them: ‘Bill and Belinda, what can we
do about ensuring the reputations of the corporation and of Belinda as an
international consultant in the industry are maintained?’
• Reframing from personal (Bill says, ‘Belinda has always been secretive about her
dealings with clients’) to external behaviour (‘So in the future you would like
Belinda to consult with you more openly in relation to work she is doing for
clients?’).
• Changing the procedure, for example calling separate meetings and saying: ‘Bill,
Belinda seems to be reacting negatively to your personal comments about her;
can we look at ways of overcoming that?’
Using external standards to justify
Much negotiation involves a battle of wills. Each side attempts to persuade
the other to accept their particular set of facts, values, perspectives or sense of
grievance and loss. Where one side can persuade the other to accept these factors
there will more likely be settlement; where they cannot do so there will more likely
be deadlock. Even where criteria advanced by one party are objective, for example
7.46
231
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
231
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.46
MEDIATION: SKILLS AND TECHNIQUES
the extent of carbon in the atmosphere, they can be challenged because they emanate
from the ‘opposition’.
Ideally, mediators help parties apply criteria that are independent and external
of either of them for justifying a particular option or settlement proposal. The
criteria can include: market value, custom and policy in an organisation, established
business practice, industry standards, legal rules and the like. The advantage of the
objective standards is that neither party need feel they are ‘giving in’ to the other;
they are merely acquiescing in external norms. It is more difficult for parties to resist
the notion of an objective standard applicable in similar situations to theirs, and it
provides potential protection to weaker parties.
7.47 Mediators can attempt to introduce external, objective criteria into the
negotiations in several ways. They can educate parties about their usefulness, can
suggest they consider appropriate standards to evaluate settlement options, and
can explore with participants ways of obtaining outside input, for example by an
independent engineer, on relevant criteria. In the scenario being referred to in this
section, the mediator could encourage parties to consider external criteria such
as standard employment contracts for senior advisers, market rates for commercial
leasing, industry fees for ‘external’ consulting and applicable professional codes of
conduct for Belinda and Bill.
7.48 Where there are two sets of external, objective criteria provided by different
specialists, such as IT experts or medical doctors, mediators are faced with the
problem of ‘duelling experts’, dealt with elsewhere in this book: see 10.39–10.43.
Deciding among options
When deciding among the options available at mediation, parties also need
to consider the alternatives to achieving a mediated deal. Without knowing those
alternatives (best and worst alternatives to a negotiated settlement: BATNA and
WATNA), parties in mediation will be making decisions in the dark. Mediators can
assist parties investigate and prepare realistic alternative scenarios to settlement. This
will involve some education on these elements of negotiation.
7.50 Alternatives are to be distinguished from ‘resistance points’ — sometimes
referred to as ‘reservation points’ or ‘bottom lines’: see Figures 7.1 and 7.2.Alternatives
also differ from ‘preferred outcomes’ — sometimes referred to as ‘aspirational goals’.
Typically, a party’s resistance point is better than its BATNA; if the resistance point
was worse than the BATNA, it would not make sense for that party to reach an
agreement at its resistance point. A party’s preferred outcome is usually much higher
than its BATNA. For example:
• BATNA — ‘The court will order a 50:50 division of the assets.’
• Resistance point — ‘I will accept 55 per cent to take account of the costs I’ve
expended to date.’
• Aspiration level — ‘I want to aim for 62 per cent as a preferred outcome as I feel
I contributed more than he did.’
7.49
232
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
232
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.54
The BATNA analysis is more complex where the alternative is litigation.
To determine whether it is in a party’s interests to pursue the litigation route, it
is necessary to consider its risks, costs and benefits. Risk assessment is considered
further in Chapter 8.
7.51
Special Techniques in Negotiation
7.52 The following techniques are potentially appropriate for all forms and
styles of negotiation and their use is a matter for mediators’ wise judgment. The
illustrations below are made in relation to a franchising mediation between Simon,
the franchisor, and Julie, a franchisee, where it is common ground that the two wish
to remain in the franchise arrangement in the future — provided that they can reach
solutions at mediation.
What’s in a (re-)frame?
Psychology informs that once a negative emotive association has been made
in relation to a person, it is difficult to change it. In dispute contexts, negotiators may
respond negatively to options generated by the other side, even where they would
be considered constructive from the perspective of an impartial bystander (and a
mediator). The syndrome is called ‘negative transference’.
For mediators this is an opportunity to use reframing techniques to ‘translate’
what one party has said to the other in a way that maximises the scope for useful
negotiation exchanges between them. The fact that one party’s offer is summarised
and presented to the other by an impartial and trusted mediator may dispel negative
transference by distancing the offer from its maker.
However, it is not just about who sends the message. A party’s assessment of
the risk associated with an offer will be a product of their affective associations
as both emotional and rational brain centres are involved in all decision-making.
(Re-)framing of arguments, objections and offers can directly influence how one
party responds to the other.
7.54 Here we set out a number of other psychological phenomena that mediators
can be aware of when reframing to enhance negotiability.These are variously referred
to throughout the rest of this chapter.
• Decisions are affected by a frame of certainty. People feel safe (emotive value)
with certainty and attach considerable importance to it. Mediators can therefore
reframe language to introduce the added value of ‘certainty’ into negotiation
trade-offs.
• Decisions are affected by the framing of choices in terms of losses or gains.
Most people will take risks to prevent losses but will not take equal risks to
secure gains. Therefore, mediators may consider reframing to emphasise how
settlement can prevent losses, such as costs associated with litigation, time away
from work or the business, and the chance of losing the case: see 12.16–12.18.
7.53
233
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
233
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.54
MEDIATION: SKILLS AND TECHNIQUES
• Decisions are affected by how cumulative gains and losses are framed. People
tend to value a series of smaller gains more than a single gain of the same amount.
Conversely, people feel they lose less value by one large loss than by an identical
loss amount suffered in multiple smaller parts. Mediators can therefore reframe
a total sum gain into different parts to enhance its attractiveness to a party.
Conversely, mediators can reframe a series of payments (losses) into one global
loss figure to make the overall figure more palatable to a party. For example,
instead of: ‘So you have agreed to make contributions towards repair of the roof
of $3000, split the costs of relaying the pipes to the tune of $2500, and pay for
the rezoning application to council including preparation of an engineering
report with a cap of $4000’ a mediator could reframe to the following: ‘So you
can walk away today knowing this dispute is over for less than $10,000.’
• Predispositions of negotiators or parties are relevant. For example, pessimists
tend to focus on risk while optimists tend to focus on opportunity. Mediators
need to factor this into their framing so optimists also take account of risks and
pessimists of opportunities.
• People find it difficult to say no to choice. Mediators can coach parties to frame
their ideas and offers as a series of choices so they are more attractive to the
other side (and more difficult for them to refuse). In addition, mediators can
use reframing and summarising techniques to highlight the choices laid on the
table throughout a mediation. It is important to be aware that while people
like choice, too much choice can be overwhelming and lead to delays and even
stalemate. In our experience, a choice of two (or sometimes three) packaged
offers works best.
• Ownership can change a person’s valuation of a commodity. Once people own
something, they place a higher value on it than the amount they would be
willing to pay to acquire the same item. This is one reason why home-owners
tend to think their house is worth more than prospective purchasers do. Here
mediators can reframe using external standards: see 7.54.
Reframing to enhance ‘negotiability’
Reframing has particular application in the fiery crucible of negotiation. Here
it has the objective of reorienting parties’ perceptions towards more ‘negotiable’ views
of the problem: see 6.47–6.54. There are many possibilities, for example:
• Where a negotiator makes blanket demands (Julie says, ‘I need more training
and assistance to cope with the new demands of the franchise’) the mediator
can focus on the underlying needs which would be served by the training and
resources (‘Tell us what the demands of running the franchise are over a weekly
period and how training would assist you in coping with them’).
• Where a party continuously complains about what they do not want from the
negotiations, mediators can reframe to focus them on what they do want: ‘Julie,
don’t tell Simon what you don’t want him to do when you bring problems to
him, tell him what you do want him to do.’
7.55
234
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
234
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.57
• Where a party talks in broad generalities (Julie says,‘The franchisor never follows
through his good ideas with action’) mediators can focus them on specifics
(‘What do you mean by “never”? Can you give some examples of the good
ideas you are referring to and what “action” would have looked like?’).
• Where a party is focused on the past, mediators can refocus them on the future:
‘Simon, you’ve told us about some past challenges you’ve faced managing the
franchise arrangement; now tell us what a good working relationship between
you and Julie would look like in the future.’
Issue proliferation
In some negotiations there appears to be only a single issue at stake — often
the question of how much money one party is to pay the other. In these situations,
mediators require techniques to get the parties to identify and deal with other issues
as well, referred to as issue proliferation or issue enlargement. The additional issues
could be substantive, procedural or emotional. They might include intangible factors
such as positive publicity, confidentiality to avoid embarrassment and future business
dealings. Multiple issues are easier to bargain over than single issues. They provide
scope for trade-offs, reciprocal concessions and packaging deals, and are less likely to
result in the dreaded ‘last gap’ that is often difficult to bridge.
7.57 This principle can be illustrated in relation to money claims. Assume in the
franchising scenario (see 7.52) that all matters have been settled, except for payment
to the franchisor Simon of money outstanding under the franchise agreement. Here
mediators must be alert to potential sub-issues that can be added to the main issue,
namely the dollar amount to be paid. The sub-issues could (with poetic licence in
this scenario) include:
• timing of payment (immediate, 21 days, and so on);
• method of payment (electronic, bank cheque, cash, payment in kind);
• nature of payment (lump sum, instalments, down payment and instalments);
• variations with instalments (number, quantum, timing);
• place of payment (local, Singapore, Mauritius);
• effectiveness of payment in relation to taxation;
• security for deferred payments;
• interest accrual on default of deferred payments;
• legal and other professional costs;
• the mediator’s fees and mediation costs: see case illustration below.
While all these issues will be subordinate to the central issue of the amount of
money, they may constitute sufficient value to one or both parties to be helpful
in reaching agreement on the dollars. They also allow the party making the final
concession on quantum to save face by prevailing on lesser issues. So Julie might
reason as follows, ‘I had to accept Simon’s final offer on the amount owing under
the agreement although he only came down a little on quantum. However, his
7.56
235
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
235
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.57
MEDIATION: SKILLS AND TECHNIQUES
concession on deferred payments in a series of instalments helps with my cash flow
and when he picked up the venue cost it felt like a moral victory’. All disputes can
be converted into multiple issue disputes to some degree.
Case illustration: Designer shoes and issue proliferation
In Melbourne a dispute arose between Tala Hu, a regular customer of Black
Diamond Bistro, and George Amalopolous, the owner of the restaurant. Tala
had been entertaining clients one Thursday evening when she sustained injuries
to her right ankle and head after the heel of her new Banolo Mlahnik designer
shoes worth $4000 jammed in a crack in the stairs leading to the private bar.
Tala and George agreed on a figure to cover medical expenses Tala incurred
as a result of her injuries but could not agree on the issue of Tala’s damaged
shoes.Tala argued that George should compensate her for a new pair of Banolo
Mlahniks and George countered that her shoes were ridiculously over-priced
and that he would only be willing to pay for the repair of the damaged right
heel. There were no sub-issues on the table. After a short adjournment in the
mediation, George asked the mediator about their total fee if they could reach
agreement within the hour. The mediator referred to the Mediation Agreement
and confirmed that the fees would be $1900, whereupon George offered to pay
the full fee instead of the normal 50:50 fee-sharing arrangement. Touched by
this, Tala responded by accepting George’s prior offer to pay for repair to the
damaged heel. The sub-issue of the mediator’s fee had created additional ‘value’
to allow the parties to cross the last gap, despite the fee amount being smaller
than the gap itself. It might, however, have allowed Tala the emotional satisfaction
of being able to say, ‘He caused the damage to my shoes and was responsible for
the humiliation I suffered falling down the stairs in front of Melbourne’s A-listers,
so he was at least obliged to pay for the mediation. I can live with that.’
‘Forcing the issue’
Where there is a number of negotiating items and the parties are moving
through them one by one in a positional way, a mediator might elect to ‘force the
issue’, either because little progress is being made or because there is a time limitation.
As with any other mediator intervention this requires delicate judgment and there
is always a chance that it will not work as intended. However, where the mediator
makes this choice, he or she might move things along as follows:
7.58
Case illustration: Forcing the issue in the case of the large luxury villa
Following a complex residential tenancy dispute between the lessor of a large
luxury villa, Penny Primrose, and the tenant, Robbie Billions, the following
four issues remain unresolved: retention/return of deposit, replacement of
adjoining wall between master bedroom and en-suite bathroom, return/
retention of goods left behind in the property (wine cooler, antique bureau and
236
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
236
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.59
a Bosendorfer Imperial Grand Piano), and compensation for the restoration of
the summerhouse from a soundproof recording studio to a classical Victorian
style summerhouse. The mediator notes these issues on the board in two lists,
apparently in random order but with the goal of having the more important
issues at the head of each list. Table 7.3 shows what this might look like.
Table 7.3: Remaining issues
Retention/return of deposit.
Compensation for restoration of classical
summerhouse.
Replacement of wall between master
bedroom and ensuite bathroom.
Return/retention of goods left behind in
the property.
The mediator then indicates that each party will be asked the same questions. He
points to the first column and asks Robbie which is the more important of the two
issues for him. If Robbie indicates the return of the deposit, the mediator then asks
him whether, if his preferred option were accepted in this list, he would be prepared
to accept Penny’s proposal to replace the wall between the bedroom and bathroom.
If there is an affirmative answer, the mediator asks the same two questions of Penny
in relation to the second column. If both parties accept the proposals, it allows each
to be successful on their ‘first’ priority and have their way on another issue, in a
reciprocal package that is nominally equal to them both: Penny gets her way on the
summerhouse restoration and Robbie gets his way on the return of his goods left
on the deposit. This avoids the feeling that one party is conceding to the other and
prevents the problem of having one issue only left for negotiation.
7.59 Another way of ‘forcing the issue’ is to ask one of three different questions to
each party. Each question has the same objectives, namely to get the parties out of
entrenched positions, to open up the negotiations and to get the parties to think in
terms of trading off one preference for another.
Forcing the issue through dissonance
The first way of asking the question:
Mediator: I am now going to ask you each a similar question so that we can
explore the scope for structuring a package. Robbie, you have said it is important
to you to have your deposit returned in full. Now what are you prepared to
offer Penny to get her to agree with you on this point …? Now, Penny, you have
said that your proposal on restoring the summerhouse should be accepted,
what are you prepared to offer Robbie to get him to agree to that proposal …?
The second way of asking the question:
Mediator: Now, Robbie, assume I was the judge and ordered that the return of
the deposit was conditional upon restoring the property to its original state.
237
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
237
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.59
MEDIATION: SKILLS AND TECHNIQUES
What do you think would be reasonable restoration conditions to impose along
those lines …? Now, Penny, assume that I was the judge and …
The third way of asking the question:
Mediator: Now, Penny, you have heard that Robbie would like his full deposit
returned, which is not your preferred choice, but what would you need from
Robbie to get you to agree with him on that issue …? Now, Robbie, you have
heard that Penny …
In each case the mediator is using ‘dissonance theory’ to get the relevant party
to consider options not immediately palatable to them. It gets parties to think about
the issues from the other side’s point of view and to consider options they have so far
resisted. By articulating things from the other side’s perspective, it is not as easy for
that party to hold rigidly to their own preferred position. But mediators beware; it
could also result in the mediator being regarded as the ‘scapegoat’.
7.60
Shifting between principle and detail
Where parties are stuck on matters of detail, mediators can attempt to move
discussions to a more abstract level in order to achieve agreement ‘in principle’.
For example, in the dispute between Penny and Robbie over modifications to the
property and summerhouse, a mediator might attempt to get the parties to agree in
principle on the need for some restoration. With the ‘in principle’ commitment in
place, the parties can then work on the detail of the modifications, the timeframe for
completion and the specifications — specifically to what extent are modifications
to be undertaken to restore the property back to its original form or to match the
lessor’s classical tastes.
7.62 Conversely, where the parties cannot agree on matters of principle because it
is too abstract or too compromising, mediators can attempt to move the discussion to
more concrete levels to reach agreement on some of the details. In the above example
neither party might want to agree to the ‘in principle’ arrangement and the mediator
can then focus on the details of which party is to arrange for the modifications, the
timeframe in which various aspects of restoration are to commence and finish and the
specific style of restoration. In dealing with details, the parties might creep up to the level
of ‘in principle’ agreement. In our experience the mediator’s ability to move discussions
between principle and detail is a significant way of keeping them moving productively.
7.61
Making more than one offer
As indicated previously, mediators can find it useful to encourage parties, in
particular defendants or respondents, to make more than one offer at an appropriate
time. This affords the plaintiff or claimant an ability to choose and provides a sense
of power and control, albeit limited. In a de facto property mediation, a party might
be encouraged to say:
7.63
238
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
238
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.65
I offer you either 58 per cent of the asset pool based on my valuations, or 54 per cent
based on your valuations of the assets.
In a mediation involving payment of damages, the defendant might be encouraged
to say:
I offer $40,000 lump sum within 14 days and 24 monthly instalments of $4000, or
$90,000 lump sum within 7 days and 36 monthly instalments of $1300.
Apart from the choice element that these proposals provide, there can also be
value for a claimant not receiving what they really want from the defendant in
dollar terms.They can at least opt for the payment plan best suited to their needs, for
example in relation to their credit rating or cash flow implications or what they will
tell their children.
Introducing reciprocity
Where possible, mediators attempt to bring reciprocity into the bargaining
dynamic. This can be illustrated in relation to parenting disputes. A contact parent
may insist on being notified immediately by the resident parent about any illness
or sickness of the children, on receiving medical reports and on having access to
the treating doctors. If this condition is made applicable to both parties, even if
asymmetrical in its significance, it is more likely to be accepted by the resident parent.
This is because it is easier to commit to something if the other party is making the
same commitment — it creates a nominal equality even though the arrangement is
more significant for one side than for the other. The same principle can be applied
to other common demands in parenting mediations, for example that the contact
parent give written notice of intention to take the children on holiday interstate or
that the resident parent make their phone number available to the other parent. In all
cases the request is more likely to be accepted if the obligation is made reciprocally
binding on both parents.
7.64
Linked bargaining
Conditional linked bargaining has two closely related elements.The first is the
linking of one negotiation issue to another so that there is a package of two issues;
the second is the conditional way in which the linked issues are presented. It is best
illustrated by way of example.
7.65
Case illustration: Linked bargaining in a partnership dispute
Consider the following mediation that is taking place between Perth architects
Sam and Kevin, currently in dispute about the dissolution of their long-standing
partnership. Sam, the managing partner, is claiming compensation from Kevin
for breach of the terms of the partnership deed. He claims that Kevin has been
conducting a separate business on the side and subcontracting his niece Ruby
to carry out partnership duties without seeking consent from Sam. Sam is also
seeking possession of Kevin’s Nissan Leaf as he claims it was purchased with
partnership funds. For his part, Kevin insists that Sam terminated the partnership
239
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
239
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.65
MEDIATION: SKILLS AND TECHNIQUES
on unsubstantiated grounds and accuses Sam of spreading defamatory rumours
about him through the Perth architectural community. Kevin believes this has
damaged his professional reputation and seriously affected his earning potential.
He is counter-claiming and seeking compensation from Sam.
The following dialogue indicates how linked bargaining could be pursued in
respect of two of these issues.
Mediator: ‘Kevin, if you were to get a satisfactory outcome in relation to Sam’s
claim for compensation, what would you be prepared to offer Sam in relation
to the car?’
Kevin: ‘Actually, if he was willing to drop the compensation claim against me,
I might be prepared to come to some kind of arrangement about releasing the
car to the business. I suppose that I did get it at corporate rates after all.’
Mediator: ‘Okay, Sam, you’ve heard what Kevin has to say about compensation
and the car. If he is prepared to let the business take the car, is there anything
you can do about your financial claim for breach of the partnership deed?’
Sam: ‘Well I need to think about it. I suppose if he is serious about making the
car available to the business and has it professionally serviced and valeted at his
expense, then I might be willing to reduce the compensation claim. I can’t write
off all of it, but I suppose I could let go of some of it.’
This strategy is closely related to the ‘what … if ’ and ‘if … what’ hypothetical
questions canvassed in 6.57. Its objective is to free up some space in which either
Kevin or Sam might feel secure in making an offer on one issue in the knowledge
that it is contingent on their being satisfied on another. It is designed to open up
the negotiation without either side feeling that they are at risk. If Kevin makes a
constructive suggestion on the car issue it will not constitute a unilateral concession
and the mediator can then focus attention on the conditional factor, namely
compensation. Likewise, if Sam concedes conditionally on the compensation issue,
the mediator can focus on the car as a way of ensuring that the concession can be
secured. If the conditions are not met on either side, the relevant party can withdraw
their offer without being inconsistent or losing face.
7.67 This approach forces parties to focus on specific issues, without sliding off
into other issues, as frequently happens in negotiations. For example, Kevin might
ordinarily say, ‘I’m not prepared to talk about the car while he is still claiming
outlandish compensation for something I have not done.’ The mediator’s intervention
makes him concentrate on one issue by reassuring him on the other. It involves a
key reframe by the mediator, through the use of words such as ‘reasonable’, ‘fair’ and
‘appropriate’ in the conditional term.This avoids an expectation in Kevin’s mind that
he will get what he wants on the compensation issue; it reduces the expectation to a
‘satisfactory’ or ‘fair’ outcome.
This bargaining method involves a level of sophistication and if mediatorinitiated it can become a pattern for the deal-making phase of negotiations: see
further Chapter 12.
7.66
240
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
240
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.72
Building blocks or juggling balls?
Linked bargaining is a way of avoiding ‘wasted’ concessions being made by
negotiation parties. Mediators might observe a party or adviser making an early
concession on a seemingly unimportant issue (‘Yes, we’ll agree to settlement terms
being made confidential if that is what you would like …’) without extracting a
reciprocal concession for their own benefit or keeping it up their sleeve to trade with
later. However, the issue is not a simple one.
7.69 There are two basic approaches to dealing with multiple negotiation issues.
The first is the building block approach where each issue constitutes a block in the
wall being constructed and the blocks are put in place one by one. In this model
each concession a party makes means progress as another block is cemented into
place. In this approach mediators might encourage unilateral concessions. The main
problem with this approach is that the final block might have to be put in place on
its own without being able to rearrange the other blocks and this might be difficult
or impossible to achieve.
7. 70 The other approach is the juggling balls approach. Here the various negotiation
items are kept in the air for as long as possible so that there are always multiple issues
to negotiate over, and conditional offers and linked bargaining can lead to mutually
satisfying trade-offs and packaging. In this approach mediators would be cautious
about unilateral concessions as they eliminate a tradeable item. However, this model
might become too complicated, parties might be discouraged, and all the balls could
fall to the ground with nothing settled. As usual, each approach has strengths and
shortcomings and circumstances dictate which is used.
Even if the juggling balls approach is followed, there is one good reason why early
unilateral concessions might be appropriate. They could constitute signs of good
faith and improve the negotiation mood.
7.68
Accommodating future contingencies
A potential problem in negotiations is that decisions might have to be made in
the face of uncertain future contingencies. The contingencies could relate to various
external factors involving other parties’ decisions, fluctuating interest rates, volatile
trade conditions or unpredictable market developments. A grandparent might have
to be requested to transport children at the beginning and conclusion of contact;
property might have to be sold and distributed where the sale price, and even the
likelihood of a sale, are unknown factors; a bank has to be asked to release guarantors
from their guarantees; or an estate has to be administered and there is uncertainty
over the identity of potential beneficiaries.
7.72 There are various ways in which mediators might guide the parties on dealing
with future unknowns. As with other difficulties in mediation, they first normalise
the situation: ‘In many negotiations, and other life situations, relevant people and
their advisers have to make decisions in circumstances of uncertainty’. In addition,
mediators could guide the parties to:
7.71
241
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
241
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.72
MEDIATION: SKILLS AND TECHNIQUES
• reach agreement on matters that can be settled, adjourn mediation and resume
it when formerly uncertain events have become clear — also known as the ‘wait
and see’ method;
• make an assumption as to what will transpire and base the settlement on this
assumption, with a covenant that if the assumption proves to be unfounded the
parties will revisit their agreement accordingly — the ‘default’ method;
• develop a formula, involving percentages, proportions or ratios, which can be
applied to facts, interest rates or selling prices when they do eventuate — the
‘formula’ approach;
• establish another procedure for resolving the uncertainty that involves the
parties, fact-finding, external experts and the like — the ‘procedural’ method;
• have parties base agreements on average or median prices or use their own figures
or the estimates of their advisers or experts — the ‘rough as guts’ approach.
Taking account of parties’ perceptions
The focus in this chapter is on how mediators can assist parties to negotiate
constructively.This requires mediators to observe what is happening in the room and
make judgments and decisions on the basis of the observed phenomena. Moreover,
mediators need to be alert to how the parties are subjectively experiencing the
negotiations, despite this being less easy for outsiders to detect and understand. In
this regard, mediators must be mindful of the following negotiation dynamics:
• Where Party A makes a concession ‘too easily’ and Party B feels that it has not
been given in response to their demands, Party B may devalue the significance
of the concession (‘reactive devaluation’).This points to the need for appropriate
timing in negotiation dynamics, a factor referred to earlier. It is repeated
here because it is important for mediators to be attentive to parties’ possible
perceptions accompanying the concessions made by the other side.
• Concessions by Party A on a ‘take it or leave it’ basis, without any apparent
recognition of Party B’s arguments or needs, might be rejected by Party B, even
though they are objectively valuable, because they did not materialise out of a
reciprocal procedure of give and take between the two.
• Offers or concessions made by the ‘wrong person’ may be rejected, for example
a worker refuses to accept anything emanating from the Human Resources
Director, or a plaintiff refuses to consider suggestions from the other defendant’s
lawyer (known as ‘negative transference’), whereas they might be receptive to
the same offers from others.
• Where Party A feels disempowered and forced into making compromises
(‘perceptual disempowerment’), they might become resistant and recalcitrant,
even though the concessions being made by Party B are objectively valuable.
• Party A, who has consistently made strong positional demands, may be able to
change their mind only where ‘legitimate’ reasons for doing so are provided and
7.73
242
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
242
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.75
identified, for example new documents have been produced of which they were
previously unaware.
• Some parties require a protracted sense of struggle before they will be satisfied
with any outcome. In these situations, a series of incremental concessions will
be more ‘satisfying’ to them than a single large concession.
• A settlement will be easier to accept where it is perceived as a ‘gain’ and not a
‘loss’ (known as ‘loss aversion’), which might require consideration of the bigger
picture surrounding the specific dispute, including such factors as legal expenses
and opportunity costs: see Chapter 12.
• When framed as a loss, an offer will be easier to accept when it is bundled into
one global figure rather than a series of cumulative losses.
• Conversely, a gain will appear to be more significant when it is unpacked and
itemised as a series of gains rather than as one global figure.
7.74 Mediators use the familiar formula in dealing with these dynamics. They:
• observe what is happening (observation);
• make a tentative diagnosis (diagnosis);
• plan an intervention (intervention); and
• implement the plan (implementation).
For example, an intervention could involve normalising a situation so as to
empower the parties, educating them about the significance of the current situation
and using separate meetings to discuss with them ways of dealing with it. If this
intervention does not work, they re-diagnose the problem, reach into the toolbox
and venture another intervention.
Working with numbers
A mediator who has an understanding of the psychology of numbers, and
is a little numerate themselves, can help parties work creatively with the respective
numbers. Numbers can be viewed in many different ways, for example:
• as a percentage or fraction (‘Would you consider increasing your offer by
10 per cent to reflect the 10 per cent decrease in their claim?’);
• as a range (‘Would you be prepared to consider a settlement between $300,000
and $350,000?’);
• as beginning with a particular digit (‘Are you looking for a settlement beginning
with a four?’);
• as containing a certain number of digits (‘Are you looking for a six-figure
settlement?’);
• as being higher or lower than a target (‘Am I right in thinking that you are
aiming to recover at least your costs?’).
Flexibility with numbers can also provide momentum for the negotiations.
Another useful technique is to assist parties move from an approach based on specific
7.75
243
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
243
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.75
MEDIATION: SKILLS AND TECHNIQUES
figures to a global approach or lump sum.This approach can change the dynamic and
encourage movement between the parties.
Crossing the last gap
The last gap is a special type of deadlock encountered in both positional and
interest-based bargaining: see Wade (2006: 467).
Problems with crossing the last gap arise where parties have made decisions on
all issues except one, and have reached a deadlock on that one. It usually involves an
amount of money — the last 10 dollars or the last one million dollars, as the case
may be. The last gap is difficult to cross because both parties feel they have conceded
too much and feel that they would show weakness and lose face in making the final
concession. Even where it makes commercial sense to compromise on the last gap,
these non-commercial factors make it difficult to do so.
7.77 There are no guaranteed strategies for dealing with the last gap — mediations
sometimes fail to secure settlements. Mediators can, however, consider the following
approaches which clients can use to deal with it:
• splitting the difference: the classical compromise deal in which the parties meet
each other halfway;
• using random chance: spin a coin, draw straws or write out a set of figures
between final offers ($2000, $3000, up to $10,000) and have one selected
randomly, with an agreement that it will constitute the settlement figure;
• giving the benefit or value being argued over to a third party, for example to
charity or to the children, or to purchase a lottery ticket;
• subdividing the gap: develop sub-issues, as discussed above;
• using the ‘You cut, I choose’ routine: one party divides the chattels or other
objects of value and the other party has first pick of the ‘piles’;
• making last offers: each party gives the mediator their best offer confidentially
and if the gap between these offers is less than a predetermined amount the
mediation proceeds, otherwise it is discontinued;
• deciding on appropriate procedural options:
–– refer the liability or quantum question to an expert and continue mediation
in light of their opinion;
–– change the process, for example to ‘med-arb’;
–– refer the issue to a ‘higher authority’, such as a tribunal, board or court;
–– defer treatment of the last gap to a fixed time and implement the remainder
of the agreement in the interlude;
• adjourning and getting both parties to exchange ‘final offers’ directly with each
other, or through the mediator, within a specific period;
• adjourning and getting one party to accept or reject the ‘final offer’ of the other
party at a specified date and time;
7.76
244
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
244
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.80
• asking advisers to put the same question to their clients, namely whether, if the
other party moves up/down to a specified figure, they will move down/up;
• shaming the parties: mediators offer to cover the gap themselves, in the hope
that parties will be embarrassed and do it themselves. (It is a risky strategy as
parties might accept the offer.)
Ultimately it is best to anticipate and pre-empt the last gap syndrome. Mediators
may offer a warning to parties early in mediation about the potential problem
and discuss ways of avoiding it, for example by keeping more than one issue to
negotiate over.
A note on splitting the difference
Splitting the difference is useful — in the right circumstances. It is the
classical form of compromise and might be the appropriate strategy in some cases,
even though compromise is sometimes looked on as defeat in terms of mediation’s
potential. Some mediators suggest the problem with splitting the difference is that
it rewards the bigger liar, in that the point of compromise will favour the party who
made the more extreme opening demand. Nevertheless in the right circumstances it
might be highly appropriate and can be introduced by the mediator as an honourable
option: ‘You each need to give a little to get a little’, or with a small homily, ‘In my
view a little give and take by each of you will settle this matter.’
7.79 Mediators are alert to the problem of only one party offering to come halfway
across the last gap; the danger is that the other party will split the remaining difference,
creating a new gap. For example, if there is a last gap of $10,000 and one party offers
to move $5000 the other might respond with only $2500. Therefore in joint session
the mediator might say, ‘Are you both prepared to meet halfway …?’ or in separate
session, ‘Are you prepared to concede half the disputed amount on condition that
the other side also does so …?’ Care is to be taken with language on this issue, as
the term ‘compromise’ might not be appropriate in some cultural contexts where it
might suggest the sacrifice of principle.
7.78
Dealing with last-minute add-ons
Reference has been made in this chapter to the problem of the last-minute
add-on. (Remember Danielle’s late claim for a Titanium credit card.) The additional
claim, where settlement has been reached on all declared issues, shortens the temper
of the other party — and the life expectancy of mediators. In a matrimonial property
dispute where agreement had been reached on the assets, debts and resources such as
superannuation, one party raised the question of Randolph (not his real name) the
beagle. It took another 90 minutes to finalise the issue of Randolph’s residence and care.
Mediators must be careful not to judge the add-on too quickly as it might be
the result of genuine oversight by the relevant party. It was not an oversight in
Randolph’s case where it appeared to have been a deliberate strategy to save face by
extracting the final concession, or even to destabilise the whole settlement because
the party concerned did not want to settle at all.
7.80
245
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
245
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.81
MEDIATION: SKILLS AND TECHNIQUES
Here a mediator’s first responsibility is to attempt to diagnose the motive for
add-ons and to base interventions on that provisional diagnosis. If it appears to be
an oversight, then some explanation and face-saving is required. If it is a tactical ploy
then several interventions can be considered: asking the other side if they also have
additional items, re-opening earlier issues and discussing together with the additional
one, resorting to separate meetings, confronting the party who raised it, or using
some of the techniques discussed in relation to the last gap.
7.82 Where mediators suspect in advance that an add-on might arise, they can
inform parties about the conundrum in a general way to lessen the chances of it
being used as a tactical ploy. Mediators could ask parties to agree at that point on how
to deal with the problem if it arises. Mediators can also pre-empt the tactic by asking
parties periodically whether all relevant issues have been disclosed, in an attempt to
make it less easy to sabotage the mediation process at the end.
7.81
Dealing with Impasses
A note on terminology
Different words are used for situations in which mediating parties ‘get
stuck’. Terminology is important and each possible term for this situation has its
own connotations. Terms include deadlock, stalemate, logjam, gridlock, bottleneck
and standoff. Metaphors do not always cross cultural boundaries and we leave it to
mediators to decide which term or terms are appropriate. Here we use the term
‘impasse’ in relation to the ‘getting stuck’ factor.
Impasses are situations in which one or both negotiating parties refuse to make
further concessions and the negotiations are threatened with termination. Many
negotiation and mediation texts provide long lists of ‘things to do’ in the face of
impasses, such as ‘move on to another issue’, ‘take an adjournment’ and ‘have a beer’.
There is some value in these suggestions, but they all require concrete circumstances to
indicate whether they might be appropriate. Here the list system is used (without the
beer) but with attempts to provide a more systematic approach to the impasse challenge.
When facing impasses, mediators would do well to remember that if they
continue to do the same thing, they are likely to keep getting the same result —
grandstanding, table-thumping and threatening walk-outs might not be helping and
therefore something has to change.
7.84 As with other problems in life, it is helpful to go back to basics. There are
three different categories of interests that parties might have in mediation, namely
substantive, procedural and emotional, and there are three different aspects of
mediation that mediators might be able to change in order to overcome an impasse.
In terms of facilitating change on substantive issues, mediators might seek to shift
parties’ perspectives on their positional demands in a variety of ways. Alternatively
mediators might choose to introduce procedural changes to the mediation. Then
again they might initiate an intervention with the aim of changing the relational
dynamics in the room and in participants’ feelings (emotions) about themselves,
7.83
246
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
246
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.84
Facilitating the Negotiations
the others and the mediation itself. Of course, mediators can introduce a number
of changes at once across two or more categories: Alexander, Howieson and Fox
(2015: 222–33).
All mediator impasse interventions will involve changing something about how
substantive, procedural or emotional interests are currently being addressed. What
follows are some possible mediator interventions which recap many of the tactics
discussed in this book. At the end of each subsection an illustration is provided from
the partnership mediation involving Sam and Kevin.
Substance: How can mediators change the structure, substance, perception or
content of the proposal on the table?
• challenge the assumption that there is only a ‘fixed pavlova’ over which to
negotiate;
• refocus parties’ attention on interests and away from their positions;
• investigate possibilities of further exchanges of information and data;
• shift from substantive issues to alternative procedures for dealing with the
problem;
• conduct brainstorming or other creative option exercises;
• clarify communication and the parties’ mutual understandings;
• develop sub-issues (issue proliferation);
• link negotiation issues in a packaged system (linked bargaining);
• emphasise costs and other downsides of not settling;
• consider whether confidentiality undertakings might help overcome deadlock
concerns;
• have one key witness give ‘evidence’ after which participants discuss its
significance.
Case illustration: Changing parties’ perspectives on substantive aspects
of dispute
If Sam and Kevin are in dispute over the terms and expectations of the partners,
a mediator might suggest that they revisit their partnership agreement and
invite their now retired ‘mentor’, who helped them establish the partnership,
to provide information at the mediation and be asked questions of clarification,
after which Kevin and Sam could resume their discussions.
Procedure: How can mediators change the way the procedure is being conducted?
• ‘normalise’ the situation — remind parties that it is a normal part of mediation
proceedings to ‘hit the wall’;
• summarise progress in a positive way and invite the parties to continue;
• move to another agenda item;
247
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
247
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.84
MEDIATION: SKILLS AND TECHNIQUES
• suggest a break and reconvene at a later time or date;
• reassess the effect of the venue, seating, comfort factors, visual aids and the like;
• use separate meetings to ascertain why and how the procedure is not satisfying
the parties;
• use separate adviser or party meetings to provide momentum;
• reconvene a joint meeting to encourage the airing of differences, brainstorming
and narrowing of issues;
• explain and make transparent aspects of mediation and negotiation dynamics;
• use visuals diagrams, pictures or mud maps to depict the situation more
graphically;
• ensure stronger enforcement of the mediation guidelines;
• encourage parties to take responsibility — ‘How will you resolve this impasse?’
or ‘What can you do to make a difference?’;
• encourage a concession that is easy for one party to make and valuable for
another to receive;
• offer to make a non-binding recommendation if all participants consent;
• investigate possibilities of changing the mediator;
• introduce a deadline for decision-making.
Case illustration: Changing aspects of how the procedure is conducted
If Kevin and Sam have reached an impasse because Sam is dominating the
mediation and otherwise ignoring the mediation guidelines, and Kevin is
becoming confused and unable to make decisions, the mediator might do the
following: identify and name the problem, restate the guidelines, get both parties
to recommit to them, take a short break to allow Kevin to compose himself,
and resume the mediation with more assertive application of the conduct rules
than before.
Emotions: How can mediators change the relational or interpersonal dynamics in
the room?
• consider changing the principal negotiators or support persons;
• rearrange the seating of participants;
• allow some controlled venting of feelings;
• acknowledge deeply experienced emotions of the parties;
• name and deal with destructive tactics used by one or both parties;
• consider appropriateness of language, terminology and non-verbals;
• consider the relevance of mutual apologies;
248
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
248
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.85
Facilitating the Negotiations
• attempt to articulate the existence of value disputes;
• identify an exception or other basis to ‘change the rules’ so that parties can save
face;
• call for a lunch or other food break and suggest all participants eat together
without discussing the mediation.
Case illustration: Changing aspects of the interpersonal dynamics
Kevin and Sam seem to be at each other’s throats. Each time one begins to
speak, the other interjects and disagrees. The mediator notices that they are
sitting directly across the boardroom table from each other so it is hard for
them to look anywhere other than directly at the other. The mediator calls
for a short refreshment break during which time he rearranges the furniture
so that the parties are positioned in large sofa chairs at right angles to each
other and away from the boardroom table. The chairs are facing the flipchart
which contains a list of the issues the parties are negotiating. With this type of
intervention, mediators create a physical setting and a positioning of parties
that embody a collaborative, problem-solving spirit in which parties’ eyes are
focused on the list of issues on the flipchart. At the same time parties can easily
turn to face one another and continue talking.
Mediator Methods
There are different methods mediators can adopt for assisting parties to realise
the goal of effective negotiation.
• Educating: Mediators can explain to participants before mediation about
negotiation’s normal features and predictable impasses. This can be done by
email, in personal and phone contacts or, where there are many individuals on
each side, by conducting a negotiation workshop for each group. During the
course of a mediation mediators may make a presentation to the parties on a
specific aspect of negotiation.
• Advising: Mediators may ‘advise’ both parties in generalised ways, for example
that mediation works best when they are all prepared for the negotiations.
They may add specific recommendations, for example that preparation on
the valuation of disputed goods can help negotiations run more smoothly. At
more ‘interventionist’ levels mediators may advise one of the parties in separate
meeting that if they accept the other side’s offer with alacrity the offeror might
feel that they have offered too much and attempt to recover some value.
• Coaching: During the separate meetings mediators can coach the relevant party
on appropriate ways of linking offers, presenting proposals and responding to
offers in joint session. Coaching can include short demonstrations and rehearsals
7.85
249
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
249
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
7.85
MEDIATION: SKILLS AND TECHNIQUES
for the ‘real thing’. Mediators need to be mindful of the impartiality norm when
undertaking this role; they cannot become ‘advocates’ of either party.
• Modelling: Co-mediators can model appropriate negotiation behaviours by
dealing openly with their differences and focusing on underlying interests. In
more subtle ways solo mediators can model good negotiation techniques when
they are ‘negotiating’ with one or both of the parties over procedural issues or
other impasses.
• Pre-empting: Where mediators are concerned that specific problems may
materialise they can attempt to pre-empt the issues. For example, where they
are suspicious about last-minute add-ons they might say, well before this can
occur: ‘In my experience people sometimes think of something they want at the
last moment and this can threaten all the good work that has been done. Might
either of you have overlooked anything like that?’
• Illustrating: Mediators can provide examples from their practical experiences,
without actually suggesting them as solutions, for example: ‘In another industrial
dispute in which I was involved the parties agreed to implement the wages and
safety agreements immediately and to defer the training issue until they could
each come up with fuller training proposals.’
Negotiation Tracking 4 Mediators
Tracking is ubiquitous in the cyber-age and in a lengthy mediation,
mediators might like to track parties’ negotiation conduct. This can be used to
approve constructive contributions, reflect the implications of tactics, probe adverse
consequences of tricks and report unethical behaviour to external authorities. While
good practices and most tactics carry no risks, tricks and dubious ethics certainly do:
see Abramson (2018).
Intention and impact are important here. While a party might intend to use
reluctant disclosure of figures as a tactic the other side might see it as a trick, and
one person’s trick could be another’s unethical conduct. Nonetheless this list might
be useful for mediator tracking of parties’ negotiations, and constitute a learning
checklist for mediators themselves.
The following are examples only and can be amplified by experienced mediators:
• Good practices: Preparing thoroughly as a team, communicating clearly, disclosing
own interests, acknowledging and showing empathy to other side, being creative.
• Tactics: Starting in high-low mode and making slow incremental concessions
throughout, taking regular adjournments, avoiding early monetary discussions,
suggesting changes in procedure such as clients only meeting, making phantom
concessions.
• Tricks: Disclosing limitations of authority only when final settlement pending,
having unauthorised others in room during tele-mediation, threatening walkouts, using intimidating language.
7.86
250
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
250
22/11/2019 01:54:21
204272
TRIM SIZE: 165 x 235mm
Facilitating the Negotiations
7.87
• Dubious ethical behaviour: Behaving outside professional standards — accountant
adviser provides legal advice, fraudulent non-disclosure, deliberately omitting
key issues, such as tax implications, when drafting settlement late at night.
Lessons for Mediators
7.87
1.
2.
3.
This chapter raises the following points of particular significance for mediators:
Mediators have a responsibility to make negotiations more productive, efficient
and likely to result in wise agreements for the parties.
Mediators require an extensive understanding of the art and science of
negotiation — they are the negotiation experts and specialists at the mediation
table.
The standard mediator approach is to develop a hypothesis on a negotiation
issue, plan an intervention, carry out the intervention, and in the light of the
effectiveness of the intervention revise or refine the hypothesis.
251
Spi-Boulle and Alexander - Mediation - Skills and Techniques 3rd ed
Ch.7.indd
251
22/11/2019 01:54:21
204272