Advanced Mediation
Working with Resistance
Trainer:
Nina Meierding, MS, JD
Negotiation and Mediation Training Services
Bainbridge Island, Washington
nina@meierding.com
www.mediate.com/ninameierding
IMPEDIMENTS
and
OBSTACLES
Inadequate Information


Insufficient knowledge to make an
informed decision
Can be a source of resistance for the
advocate/attorney/parent/district
personnel
Mismanagement of
Expectations


Higher expectations than could be
supported by objective analysis
May have occurred through friends, social
network, media, attorney, family
Principle

Underlying moral or value-based
position that prevents someone from
making a concession that would go
against his or her belief
Externalities


”Away from the table” factors which impact
the ability or desire to settle
Often factually or legally unrelated to the
current dispute
Disagreement About Law/Facts

Differing good faith opinions as to the legal
or factual merits
Inability to Seek Closure

Caught in the cycle of conflict

Unable to see self in other roles

Reinforcement may be occurring for staying in
the conflict
Machismo, Ego, Loss of Face

Concessions seen as:




Weakness
Betrayal
Shameful
Disappointing to larger group
Emotionality


Inability to cognitively process information
in a productive way
High degree of emotional reactivity
Scarce Resources

Simply not enough to go around
Outcome Avoidance

Delaying the inevitable as long as possible

Stalling
Bias

Status quo bias


Confirmation bias


Keep things the way they are
Giving more weight to statements that you
agree with
Reactive devaluation

Discredit the statement if you have distrust or
dislike of the person/role delivering the
message
Hidden Agendas


Using “throw away issues” that distract
from the negotiation
Not being forthright about goals,
interests, and intentions
Cognitive Overload

Too much information at one time

Too much reality testing at one time
Lack of Authority

No access to the people who actually
make the decisions
Single Text Document

Providing a draft of an agreement too early
in the negotiation, especially when there is
reactive devaluation
What to Do?
PROACTIVE
STRATEGIES
Proactive Techniques

Separate sessions or joint sessions

Support person (friend, relative)

Life events and time of meeting during the day

Seating arrangement
More proactive techniques



Private break room
Provide snacks and juices/soda/tea/coffee (think
warm)
Watch your tone and tempo. If the party is
feeling pressured, slow down.
More proactive techniques

Positive consequences to immediately occur (Think
behavior modification!)

Balance past and future-focused discussions

Utilize a team approach

Give them some control
And…even more proactive techniques
Timing is key.



The right answer at the wrong time becomes the
wrong answer.
The right technique at the wrong time becomes
the wrong technique.
Tailor your negotiation strategies to the
beginning stage, the middle stage, and the final
stage of negotiation.
Impasse Strategies
RESOLUTION
Anchoring



Anchoring to gain rather than loss
Also known as framing
žSources of resistance
 Need to win / saving face/ ego
 Principle
 Mismanagement of expectations
Reframing

Reframing an issue
Reframing toxic language

Sources of resistance





High emotionality
Mismanagement of expectations
Principle
Ego, competitive personality
Reality Testing

BATNA/WATNA/MLATNA

Sources of resistance





Mismanagement of expectations
Disagreement about law or facts
Insufficient information to make informed decisions
Scarce resources
Outcome avoidance
Engagement

Mirroring
Sensory Modality Matching
Validation

Sources of resistance






High emotionality
Lack of rapport
Reactive devaluation
Principle
Situational Rules of Fairness

Legal, Equitable, Needs based, Faith based

Sources of resistance




Principle
Good faith disagreement about merits of the
case
Mismanagement of expectations
Emotionality
Separate Session


Separating parties or groups at strategic
(not stylistic) moments
Sources of resistance






Reactive devaluation
Pacing
Timing
Mismanagement of expectations
Principle
Emotionality
Outside Opinion

Objective criteria
Independent viewpoint

Sources of resistance





Reactive devaluation
Cognitive dissonance
Mismanagement of expectations
Insufficient information to make decision
Linkage


Simultaneous, not sequential,
negotiation; “if/then” proposal
Sources of resistance




Single text document
Negotiation styles – multiprocessors
Scarce resources
Externalities
Unilateral concessions


Making a concession in process, interests,
information or substance
Sources of resistance



Reactive devaluation
Negotiation misfires – poor pacing/timing
Emotionality
Unbundling


Breaking a broad topic or issue down into
smaller parts.
Sources of resistance




Avoidance of outcome
Reactive devaluation
Linear processing
Cognitive overload
Temporary Agreement

Agreeing to a limited duration solution

Sources of resistance




Inability to seek closure
Outcome avoidance
Inadequate information
Externalities
Identify Priorities and
Interests

Identify wants and needs

Sources of resistance




Hidden agendas
Emotionality
Principle
Externalities
Incubation


Take a break, schedule another session, and
don’t push for resolution
Sources of resistance



Avoidance of outcome
Emotionality
Externalities
Ownership of Offers


Either encourage individual buy-in or reduce
accountability depending on source of resistance
Sources of resistance





Externalities
Poor concessions
Reactive devaluation
Principle
Standards of fairness
Now and Future Focused


Transition from discussion about the past to
present and the future issue
Sources of Resistance





Hidden agenda
Emotionality
Bias
Outcome avoidance
Inability to seek closure
Summary






Be proactive.
Be aware of different levels of readiness.
Analyze the source of resistance.
Match the impasse-breaking technique to the
specific source of resistance.
Try it out!
If it doesn’t work, re-evaluate and try again.