when is negotiation appropriated dispure resolution

 Introduction:

History of ADR: A History of Alternative Dispute Resolution: The Story of a Political, Cultural and Social Movement by Jerome Barrett, with Joseph Barrett, Jossey Bass, US. In the Kalahari Desert in Botswana and Namibia the Bushmen have lived traditional lives for many thousands of years. The lack of technological refinement belies sophistication in dispute resolution practices which have evolved without courts and a formal state system and are suited to the needs of a collective hunter-gatherer society. The Bushmen’s is not an idyllic existence and disputes occur over food, land and mates. Those in conflict bring other members of the tribe together to hear out both sides. Where passions rise senior tribal members hide the disputants’ poisoned hunting arrows to prevent resort to violence. If resolution is not reached in the small group the larger community is brought together where everyone is able to talk through every aspect of the dispute over a number of days until the dispute has been ‘talked out’. Economic reality and social dependence preclude the easy resort to violence over individual problems. While it is culturally narcissistic to refer to these practices as ‘ADR’ they have obvious analogies with mediation, conciliation and peace-making practices in non-traditional societies and the authors of this book refer to similar traditions among Hawaiian islanders, the Yoruba of Nigeria and the Abkhazian of the Caucuses.  Whether we label this a ‘history’ of ADR or not, it provides an engaging insight into the individual and collective wisdom of societies responding to difficulties caused by the ‘selfish gene’. The ‘ADR Timeline’ in the early pages of the book begins in 1800 BC when the Mari kingdom (in contemporary Syria) used mediation and arbitration in disputes with other kingdoms and ends with the 21st century use of mediation in the Microsoft monopoly cases. There are references to dispute resolution practices by the Phoenicians, the Greeks, the Indians and the Irish, but one of the shortcomings of the book from the perspective of an Australian reader is that the focus shifts predominantly from the international to the local with the commencement of modern American history. Moreover, while a grand historical sweep always provides useful perspective, it does so at the expense of analytical focus. Thus, the rich traditions of Chinese mediation and Muslim tahkim, different as they are from modern conceptions of ADR.

 American Depositary Receipt. A negotiable certificate issued by a U.S. bank representing a specific number of shares of a foreign stock traded on a U.S. stock exchange. ADRs make it easier for Americans to invest in foreign companies, due to the widespread availability of dollar-denominated price information, lower transaction costs, and timely dividend distributions.

 Types of ADR:

Negotiation:

Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy various interests of two people/parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise.

 Negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce, parenting, and everyday life. The study of the subject is called negotiation theory. Professional negotiators are often specialized, such as union negotiators, leverage buyout negotiators, peace negotiators, hostage negotiators, or may work under other titles, such as diplomats, legislators or brokers.

 Disputes

ADR techniques have been used successfully in a variety of disputes involving individuals, small and large businesses, government, and the general public. Various types of ADR processes are available depending on the nature of the dispute. Many types of conflict often lend themselves to an alternative and informal method of dispute resolution. Some examples of disputes often settled by ADR include but are not limited to:

  • Business disputes- contracts, partnerships
  • Property / Land use disputes- property transfers, boundaries, easements
  • Family disputes- divorce, property, custody, visitation, support issues
  • Consumer / Collection disputes- repairs, services, warranties, debts
  • Employment disputes- employment contracts, terminations
  • Landlord/tenant disputes- evictions, rent, repairs, security deposits
  • Neighborhood disputes / Relational disputes or other civil or personal conflicts
  • Personal Injury / Insurance disputes- accidents, coverage, liability

 Etymology

The word “negotiation” originated from the Latin expression, “negotiatus”, past participle of negotiare which means “to carry on business”. “Negotium” means literally “not leisure”.

 Approaches to negotiation

Negotiation typically manifests itself with a trained negotiator acting on behalf of a particular organization or position. It can be compared to mediation where a neutral third party listens to each side’s arguments and attempts to help craft an agreement between the parties. It is also related to arbitration which, as with a legal proceeding, both sides make an argument as to the merits of their “case” and then the arbitrator decides the outcome for both parties. There are two opposite types of negotiation: Integrative and Distributive.

 Distributive Negotiation

The term distributive means; there is a giving out; or the scattering of things. By its mere nature, there is a limit or finite amount in the thing being distributed or divided amongst the people involved. Hence, this type of negotiation is often referred to as ‘The Fixed Pie’. There is only so much to go around, but the proportion to be distributed is limited but also variable. A distributive negotiation usually involves people who have never had a previous interactive relationship, nor are they likely to do so again in the near future. Simple everyday examples would be buying a car or a house.

Integrative negotiation

The word integrative means to join several parts into a whole. Conceptually, this implies some cooperation, or a joining of forces to achieve something together. Usually involves a higher degree of trust and a forming of a relationship. Both parties want to walk away feeling they’ve achieved something which has value by getting what each wants. Ideally, it is a twofold process. Integrative negotiation process generally involves some form or combination of making value for value concessions, in conjunction with creative problem solving. Generally, this form of negotiation is looking down the road, to them forming a long term relationship to create mutual gain. It is often described as the win-win scenario.

There are many different ways to segment negotiation to gain a greater understanding of the essential parts. One view of negotiation involves three basic elements: process, behavior and substance. The process refers to how the parties negotiate: the context of the negotiations, the parties to the negotiations, the tactics used by the parties, and the sequence and stages in which all of these play out. Behavior refers to the relationships among these parties, the communication between them and the styles they adopt. The substance refers to what the parties negotiate over: the agenda, the issues (positions and – more helpfully – interests), the options, and the agreement(s) reached at the end.

 Another view of negotiation comprises 4 elements: strategy, process and tools, and tactics. Strategy comprises the top level goals – typically including relationship and the final outcome. Processes and tools include the steps that will be followed and the roles taken in both preparing for and negotiating with the other parties. Tactics include more detailed statements and actions and responses to others’ statements and actions. Some add to this persuasion and influence, asserting that these have become integral to modern day negotiation success, and so should not be omitted.

 Skilled negotiators may use a variety of tactics ranging from negotiation hypnosis, to a straight forward presentation of demands or setting of preconditions to more deceptive approaches such as cherry picking. Intimidation and salami tactics may also play a part in swaying the outcome of negotiations.

 Another negotiation tactic is bad guy/good guy. Bad guy/good guy tactic is when one negotiator acts as a bad guy by using anger and threats. The other negotiator acts as a good guy by being considerate and understanding. The good guy blames the bad guy for all the difficulties while trying to get concessions and agreement from the opponent.[1]

When a party pretends to negotiate, but secretly has no intention of compromising, the negotiator is considered to be negotiating in bad faith.

 The advocate’s approach

In the advocacy approach, a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favorable outcomes possible for that party. In this process the negotiator attempts to determine the minimum outcome(s) the other party is (or parties are) willing to accept, then adjusts their demands accordingly. A “successful” negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the outcomes their party desires, but without driving the other party to permanently break off negotiations, unless the best alternative to a negotiated agreement (BATNA) is acceptable.

 Traditional negotiating is sometimes called win-lose because of the assumption of a fixed “pie”, that one person’s gain results in another person’s loss. This is only true, however, if only a single issue needs to be resolved, such as a price in a simple sales negotiation.

 Getting to YES was published by Roger Fisher and William Ury as part of the Harvard negotiation project. The book’s approach, referred to as Principled Negotiation, is also sometimes called mutual gains bargaining. The Mutual Gains Approach has been effectively applied in environmental situations (see Lawrence Susskind and Adil Najam) as well as labor relations where the parties (e.g. management and a labor union) frame the negotiation as “problem solving”. If multiple issues are discussed, differences in the parties’ preferences make win-win negotiation possible. For example, in a labor negotiation, the union might prefer job security over wage gains. If the employers have opposite preferences, a trade is possible that is beneficial to both parties. Such a negotiation is therefore not an adversarial zero-sum game. Principled Negotiation method consists of four main steps: separating the people from the problem, focus on interests, not positions, generating a variety of possibilities before deciding what to do and insisting that the result be based on some objective standard.[2]

There are a tremendous number of other scholars who have contributed to the field of negotiation, including Holly Schroth and Timothy Dayonot at UC Berkeley, Gerard E. Watzke at Tulane University, Sara Cobb at George Mason University, Len Riskin at the University of Missouri, Howard Raiffa at Harvard, Robert McKersie and Lawrence Susskind at MIT, and Adil Najam and Jeswald Salacuse at The Fletcher School of Law and Diplomacy.[citation needed]and John D. Males.

Other negotiation styles

Shell identified five styles/responses to negotiation.[3] Individuals can often have strong dispositions towards numerous styles; the style used during a negotiation depends on the context and the interests of the other party, among other factors. In addition, styles can change over time.

  1. Accommodating: Individuals who enjoy solving the other party’s problems and preserving personal relationships. Accommodators are sensitive to the emotional states, body language, and verbal signals of the other parties. They can, however, feel taken advantage of in situations when the other party places little emphasis on the relationship.
  1. Avoiding: Individuals who do not like to negotiate and don’t do it unless warranted. When negotiating, avoiders tend to defer and dodge the confrontational aspects of negotiating; however, they may be perceived as tactful and diplomatic.
  1. Collaborating: Individuals who enjoy negotiations that involve solving tough problems in creative ways. Collaborators are good at using negotiations to understand the concerns and interests of the other parties. They can, however, create problems by transforming simple situations into more complex ones.
  1. Competing: Individuals who enjoy negotiations because they present an opportunity to win something. Competitive negotiators have strong instincts for all aspects of negotiating and are often strategic. Because their style can dominate the bargaining process, competitive negotiators often neglect the importance of relationships.
  1. Compromising: Individuals who are eager to close the deal by doing what is fair and equal for all parties involved in the negotiation. Compromisers can be useful when there is limited time to complete the deal; however, compromisers often unnecessarily rush the negotiation process and make concessions too quickly.

Adversary or Partner?

Clearly, these two basically different ways of negotiating will require different approaches. To ignore this can be devastating for the result, but it all too often happens. Because in the distributive approach each negotiator is battling for the largest possible piece of the pie, it may be quite appropriate – within certain limits – to regard the other side more as an adversary than a partner and to take a somewhat harder line. This would however be less appropriate if the idea were to hammer out an arrangement that is in the best interest of both sides. If both win, it’s only of secondary importance which one has the greater advantage. A good agreement is not one with maximum gain, but optimum gain. This does not by any means suggest that we should give up our own advantage for nothing. But a cooperative attitude will regularly pay dividends. What is gained is not at the expense of the other, but with him.[4]

Bad faith negotiation

Bad faith is a concept in negotiation theory whereby parties pretend to reason to reach settlement, but have no intention to do so, for example, one political party may pretend to negotiate, with no intention to compromise, for political effect.[5][6]

Inherent bad faith model in international relations and political psychology

Bad faith in political science and political psychology refers to negotiating strategies in which there is no real intention to reach compromise, or a model of information processing.[7] The “inherent bad faith model” of information processing is a theory in political psychology that was first put forth by Ole Holsti to explain the relationship between John Foster Dulles’ beliefs and his model of information processing.[8] It is the most widely studied model of one’s opponent.[9] A state is presumed to be implacably hostile, and contra-indicators of this are ignored. They are dismissed as propaganda ploys or signs of weakness. Examples are John Foster Dulles’ position regarding the Soviet Union, or Hamas‘s position on the state of Israel.[10][neutrality is disputed]

Emotion in negotiation

Emotions play an important part in the negotiation process, although it is only in recent years that their effect is being studied. Emotions have the potential to play either a positive or negative role in negotiation. During negotiations, the decision as to whether or not to settle, rests in part on emotional factors. Negative emotions can cause intense and even irrational behavior, and can cause conflicts to escalate and negotiations to break down, but may be instrumental in attaining concessions. On the other hand, positive emotions often facilitate reaching an agreement and help to maximize joint gains, but can also be instrumental in attaining concessions. Positive and negative discrete emotions can be strategically displayed to influence task and relational outcomes [11] and may play out differently across cultural boundaries.[12]

 Affect effect: Dispositional affects affect the various stages of the negotiation process: which strategies are planned to be used, which strategies are actually chosen,[13] the way the other party and his or her intentions are perceived,[14] their willingness to reach an agreement and the final negotiated outcomes.[15] Positive affectivity (PA) and negative affectivity (NA) of one or more of the negotiating sides can lead to very different outcomes.

 Positive affect in negotiation

Even before the negotiation process starts, people in a positive mood have more confidence,[16] and higher tendencies to plan to use a cooperative strategy.[13] During the negotiation, negotiators who are in a positive mood tend to enjoy the interaction more, show less contentious behavior, use less aggressive tactics[17] and more cooperative strategies.[13] This in turn increases the likelihood that parties will reach their instrumental goals, and enhance the ability to find integrative gains.[18] Indeed, compared with negotiators with negative or natural affectivity, negotiators with positive affectivity reached more agreements and tended to honor those agreements more.[13] Those favorable outcomes are due to better decision making processes, such as flexible thinking, creative problem solving, respect for others’ perspectives, willingness to take risks and higher confidence.[19] Post negotiation positive affect has beneficial consequences as well. It increases satisfaction with achieved outcome and influences one’s desire for future interactions.[19] The PA aroused by reaching an agreement facilitates the dyadic relationship, which result in affective commitment that sets the stage for subsequent interactions.[19] PA also has its drawbacks: it distorts perception of self performance, such that performance is judged to be relatively better than it actually is.[16] Thus, studies involving self reports on achieved outcomes might be biased.

Negative affect in negotiation

Negative affect has detrimental effects on various stages in the negotiation process. Although various negative emotions affect negotiation outcomes, by far the most researched is anger. Angry negotiators plan to use more competitive strategies and to cooperate less, even before the negotiation starts.[13] These competitive strategies are related to reduced joint outcomes. During negotiations, anger disrupts the process by reducing the level of trust, clouding parties’ judgment, narrowing parties’ focus of attention and changing their central goal from reaching agreement to retaliating against the other side.[17] Angry negotiators pay less attention to opponent’s interests and are less accurate in judging their interests, thus achieve lower joint gains.[20] Moreover, because anger makes negotiators more self-centered in their preferences, it increases the likelihood that they will reject profitable offers.[17] Opponents who really get angry (or cry, or otherwise lose control) are more likely to make errors:make sure they are in your favor.[1] Anger doesn’t help in achieving negotiation goals either: it reduces joint gains[13] and does not help to boost personal gains, as angry negotiators don’t succeed in claiming more for themselves.[20] Moreover, negative emotions lead to acceptance of settlements that are not in the positive utility function but rather have a negative utility.[21] However, expression of negative emotions during negotiation can sometimes be beneficial: legitimately expressed anger can be an effective way to show one’s commitment, sincerity, and needs.[17] Moreover, although NA reduces gains in integrative tasks, it is a better strategy than PA in distributive tasks (such as zero-sum).[19] In his work on negative affect arousal and white noise, Seidner found support for the existence of a negative affect arousal mechanism through observations regarding the devaluation of speakers from other ethnic origins.” Negotiation may be negatively affected, in turn, by submerged hostility toward an ethnic or gender group.[22]

 Conditions for emotion affect in negotiation

Research indicates that negotiator’s emotions do not necessarily affect the negotiation process. Albarrac?n et al. (2003) suggested that there are two conditions for emotional affect, both related to the ability (presence of environmental or cognitive disturbances) and the motivation:

  1. Identification of the affect: requires high motivation, high ability or both.
  2. Determination that the affect is relevant and important for the judgment: requires that either the motivation, the ability or both are low.

According to this model, emotions are expected to affect negotiations only when one is high and the other is low. When both ability and motivation are low the affect will not be identified, and when both are high the affect will be identify but discounted as irrelevant for judgment.[23] A possible implication of this model is, for example, that the positive effects PA has on negotiations (as described above) will be seen only when either motivation or ability are low.

The effect of the partner’s emotions

Most studies on emotion in negotiations focus on the effect of the negotiator’s own emotions on the process. However, what the other party feels might be just as important, as group emotions are known to affect processes both at the group and the personal levels. When it comes to negotiations, trust in the other party is a necessary condition for its emotion to affect,[14] and visibility enhances the effect.[18] Emotions contribute to negotiation processes by signaling what one feels and thinks and can thus prevent the other party from engaging in destructive behaviors and to indicate what steps should be taken next: PA signals to keep in the same way, while NA points that mental or behavioral adjustments are needed.[19]
Partner’s emotions can have two basic effects on negotiator’s emotions and behavior: mimetic/ reciprocal or complementary.[15] For example, disappointment or sadness might lead to compassion and more cooperation.[19] In a study by Butt et al. (2005) which simulated real multi-phase negotiation, most people reacted to the partner’s emotions in reciprocal, rather than complementary, manner. Specific emotions were found to have different effects on the opponent’s feelings and strategies chosen:

  • Anger caused the opponents to place lower demands and to concede more in a zero-sum negotiation, but also to evaluate the negotiation less favorably.[24] It provoked both dominating and yielding behaviors of the opponent.[15]
  • Pride led to more integrative and compromise strategies by the partner.[15]

 Guilt or regret expressed by the negotiator led to better impression of him by the opponent, however it also led the opponent to place higher demands.[14] On the other hand, personal guilt was related to more satisfaction with what one achieved.[19]

  • Worry or disappointment left bad impression on the opponent, but led to relatively lower demands by the opponent.[14]

  Problems with lab negotiation studies

Negotiation is a rather complex interaction. Capturing all its complexity is a very difficult task, let alone isolating and controlling only certain aspects of it. For this reason most negotiation studies are done under laboratory conditions, and focus only on some aspects. Although lab studies have their advantages, they do have major drawbacks when studying emotions:

  • Emotions in lab studies are usually manipulated and are therefore relatively ‘cold’ (not intense). Although those ‘cold’ emotions might be enough to show effects, they are qualitatively different from the ‘hot’ emotions often experienced during negotiations.[25]
  • In real life there is self-selection to which negotiation one gets into, which effects the emotional commitment, motivation and interests. However this is not the case in lab studies.[19]
  • Lab studies tend to focus on relatively few well defined emotions. Real life scenarios provoke a much wider scale of emotions.[19]
  • Coding the emotions has a double catch: if done by a third side, some emotions might not be detected as the negotiator sublimates them for strategic reasons. Self report measures might overcome this, but they are usually filled only before or after the process, and if filled during the process might interfere with it.[19]

Team negotiations

Due to globalization and growing business trends, negotiation in the form of teams is becoming widely adopted. Teams can effectively collaborate to break down a complex negotiation. There is more knowledge and wisdom dispersed in a team than in a single mind. Writing, listening, and talking, are specific roles team members must satisfy. The capacity base of a team reduces the amount of blunder, and increases familiarity in a negotiation.[26]

Barriers to negotiations

1. Die hard bargainers 2. Lack of trust 3.Informational vacuums and the negotiator’s dilemma. 4. Structural impediments. 5. Spoilers. 6. Cultural and gender differences. 7. Communication problems. 8. The power of dialogue. [27]

 Conclusion:

In all aspects of business law, time, expense and travail can often times be avoided by recourse to the alternative dispute resolution procedures of negotiation, mediation and arbitration. Litigation should be the last resort and utilized only if the ADR procedures fail. It is essential, however, that all of the parties involved in the claim or dispute approach ADR with an open mind and a willingness to compromise if it is to have any chance of success. Mr. Carrow has found mediation preferable to arbitration because it deals with the problem early on, before the parties have expended monies preparing for and engaging in the formal arbitration proceeding. He has also found that the experience, qualifications and abilities of the chosen mediator are equally essential. Some professional mediators are good, some are bad, and most are in the middle. Assuming the dispute involves substantial issues or sums, the additional price paid for the best mediator is money well spent. Mr. Carrow has found that the best of the mediators accomplishment settlement of approximately 85% of the cases put before them. Should ADR fail, the final alternative of recourse to the courts remains.

In addition to his experience as an advocate involved in the ADR process, Mr. Carrow has acted as private arbitrator, private mediator and as a settlement conference and trial pro tempore judge for the Superior Court of California, which is the equivalent of the English High Court, i.e., the highest trial court in California.

 Bibliography

1.      Halim, Md. Abdul, Barrister-At-Law (Adr In Bangladesh: Issues And Challenges), Ccb Foundation: Lighting The Dark

2.      Halim, M.A. Role of law, constitution, constitutional law and politics: Bangladesh perspective, Khan, M. Yousuf Ali, Eds; Rico printers: 9 Nilkhet Babupara, Dhaka-1205, 1998; 345

3.   http://www.investorwords.com/120/ADR.html

4.   http://en.wikipedia.org/wiki/Negotiation

5.   http://www.carrow.com/comint/COMBO-7.

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