Mediator Tips

Responding to Negotiation Tactics

Last week the most common negotiation tactics were presented along with a short description of what each meant. Though most people going through a mediation aren’t trained as negotiators and don’t know those tactics by name, everyone practices these tricks at some point or another. Imagine a kid who wants to stay up past his or her bedtime. He or she may use the “stalling” tactic by refusing to go to bed willingly until the adult watching him or her makes a concession (letting the child watch one last TV show, giving them extra dessert, etc.). As we all grow up we learn what actions engender desirable results and incorporate them into our behavior. Once these tactics are realized for what they are, however, the mediator can take constructive action to keep them from impeding an agreement.

When a mediator sees one of the common negotiation tactics being used, he or she should identify it in order to remain patient and self-controlled. Parties in mediation use these tactics to elicit some kind of response, forcing the other party into an awkward position by having to reveal something or change their position. To keep from becoming a victim of such a tactic the mediator must remain calm and neutral. If one person uses the “flinch” tactic the mediator should refrain from flinching as well. Instead, probe into what made the party flinch and the interests behind that.

Another way to offset the effect of these tactics is to use your knowledge of them to prevent them from having a devastating impact. At different points in the mediation process certain tactics can have a negligible effect while at other points that same tactic could bring the mediation to a halt. If you know that a threat at some part of the mediation could put an end to any further talking, take advantage of this knowledge to keep the parties in a stance that prevents the opportunities for threats from emerging (perhaps by strictly limiting talking back and forth between parties instead of talking to the mediator). If it is very important, you may even want to talk to the parties in a caucus to point out the effect a threat could have.

As with most things relating to human interactions, only very general rules can be divined. More often than not, deciding your actions requires understanding the context in which the interaction is occurring. Keeping the negotiation tactics in mind, and how you can respond to them, will help you gain a better understanding of the context of the mediation, hopefully increasing your chances of reaching an agreement.

Information about common negotiation tactics and possible mediator responses comes from Norman Page in his article "Mediation: What Should a Mediator Know?"

Mediation Tips
Tactics used by parties in negotiation/mediation

A large part of mediation is negotiation (although negotiation in no way encompasses mediation). As a result, it behooves mediators to know about negotiation in order to use it to your – and thus the parties’ – advantage. As a good mediator knows, parties in a mediation will generally hide their interests behind positions, using certain tactics to allow the power to shift in their direction. Five common tactics used are the threat, the stall, the party initiated caucus, feign inflexibility, and the flinch.

• The threat is an "or else" proposition. A party that uses a threat will try to elicit a certain reaction in the opposing party by threatening a certain action on his/her part (for example, refusing to take part in the mediation). Threats are generally vague to allow for the party to not carry through, although if the threat turns into an action it can end a mediation.
• The stall uses time pressure to lessen the power of the other party. If the interests of one party are time dependant (needing to leave an apartment by a certain date in order to move somewhere else), the other party may waste-time, call for breaks, not focus on the real issue, in the hopes that by using up the time the first party may make larger concessions.
• A party-initiated caucus is a team tactic used when there is more than one individual in a party. After one member of the group offers a concession another member will call a team caucus implying the member made an error. This tactic is intended to add value to the concession which later could be traded for one of value to the team.
• One will feign inflexibility to test the resolve of the other side. One party will refuse to make a concession (perhaps claiming he or her does not have the authority to make the decision) in order to learn about the other party (how inflexible he or she is, how important a concession is to them, etc.). The point of this to shift the balance of power to the first party by increasing his or her knowledge of the other party’s stance.
• The flinch is a nonverbal indicator of pain or surprise. Depending on one party’s stance/position, the other party might flinch to give the impression that what the first party is asking is too much. Examples of flinches include groaning and displays of pain as well as expressions of shock or frustration.

Be aware of these strategies in mediation, because even though it is not technically a negotiation, parties may still make use of these tactics. In some cases, their use may even be unintentional as it has just become a part of how they deal with the other party over time and as a result they have stopped noticing it. Strategies a mediator can use to combat these tactics will be put up in one to two weeks.

Fear vs. Respect

I recently did a 12-week training with kids currently involved in gangs. As a mediator, one of my goals was to help them explore their interests in living the gang lifestyle and hopefully give them the opportunity to find new ways to fulfill those interests.

Our most powerful sessions involved conversations regarding the difference between fear and respect.

The kids were clear about their need for respect. Most of their actions were aimed at getting others to respect them and recognize them as individuals that matter in this world. However, as we explored their actions, they were slowly able to recognize their current belief that fear and respect mean the same thing. Their violent actions led people to clearly fear them, and therefore (they thought) respect them.

Once the kids were able to identify the clear differences between fear and respect, their interests were no longer able to met through their violent acts. It was time to brainstorm new behaviors that would earn them the respect they desired!! It was time to change!!

Andrea Palmisano

Youth Programs Director

Using Mediation in Mob Wars

The Sopranos, a TV show about a dysfunctional mob family, recently aired its final episode. One of the story lines found in recent episodes is the increasing tension between Tony Soprano and Phil, a rival mob boss. At the climax of the storyline, Phil has had enough of Tony's "disrespect" and orders his thugs to take out Tony and his guys. In the second to last episode, guns blaze, bodies fall and it's wall to wall blood for an hour. When the episode ends, Tony has been fired by his shrink, most of his main guys are dead, along with various others, and he and what's left of his gang are holed up in a house, heavily armed.

I waited in anticipation for the final episode, wondering who would survive. When it finally aired, nothing happened for the first 20 minutes. Then, in the middle of a mob war, a mediation breaks out. Well, no one called it a mediation, but it sure looked like one. Tony and Phil's main guy, Butch, are talking on the phone. Butch wants to make peace, but Phil has already rejected the idea and rebuked Butch for not getting to Tony first. Tony and Butch talk about a neutral location. Sound familiar? It also has to be safe, everyone is frisked for weapons before the parties sit down in a cold factory. Bottled water is provided (that's a little different from the Center, as we draw water from a tap in the kitchen.)

"This has gone too far. It's time for a change," says Butch. Okay, that's about as close to an apology as you'll get from mobsters. Tony accepts the offer for a change, but he's still concerned about Phil and wants Phil's guys to do something about it. "We can't go there" responds Butch, "Do what you have to do." Tony brings up another issue: how to make up his sister's loss after her husband (Tony's brother-in-law) got whacked in a toy store. "Come on, it's my sister we're talking about here. She has to be taken care of." Phil's main guy pauses, then says, "We'll come up with a number." Everyone shakes hands because it has become a win-win situation. Tony moves his family back into their home.

The only loser is Phil, who gets whacked while standing in a gas station, waving goodbye to his grandchildren, strapped in car seats in the back of his SUV. Phil's wife gets out of the vehicle and rushes to her husband, even as the shooter is putting another bullet into Phil's chest. The SUV is still in gear and slowly rolls forward, crushing Phil's head. The producers don't actually show the head-crushing, but the sound effects are wonderful.

The lesson: Phil should have gone to mediation, instead of insisting on sticking with his position of wanting to wipe out Tony. When mobsters mediate, they find a peaceful solution. Too bad, Phil. You lose.

Chuck Hardwick
Client Services

Mediator Tips
Measurements of Workplace Conflict Management Systems

Many workplaces are starting to develop conflict management systems for their employees as a way of developing productive business relationships. These systems can include mediation, training, and other methods that teach individuals how to solve problems without resorting to violence, name-calling, or disruptive behavior. The book Workplaces that Work provides a system – which is called the Donais Fairness Theory – to measure the effectiveness and fairness of a workplace system by using 4 quotients.

The first quotient is the justice quotient. The justice quotient measures how well the system implements its programs, and the equality with which they are used. This includes making sure that all participants are heard, informing everyone of their legal rights, is independent from manipulation, and whether it results in enforceable solutions.

The second quotient is the efficiency quotient. This measures how smoothly the system is run. In doing so, several factors are primarily taken into account: these include Interest, Alternatives, Self-Help, Cost, Flexibility, Education and Timeliness. A program with a good efficiency quotient will allow employees and managers to craft goof solutions, will be cost effective, and will have numerous alternative ways of solving conflict.

The third quotient is the engagement quotient. This measures the participation level in the program. Obviously, a system no one engages with is pointless as it does not help anyone. Measuring engagement includes looking at how well a conflict management system encourages participation from employees.

The fourth quotient is the resource quotient. This measures how well a program utilizes its resources to construct a better program. If a program is set up but receives no funding or support from the company, it is not utilizing its resources effectively. Measurements also include how good the programs’ facilities are and the qualifications of support staff.

The book Workplaces that Work discusses in detail these measurements and provides operational definitions for them so that they can be accurately assessed. You can also find out more by reading this article: How Fair Is Your Conflict Management System?.

There’s Another Way

People are always complaining about how rude people are. There is a sense of meanness and irritability in our culture. It’s everywhere -- TV or radio talk shows, “news” commentaries, 24-hour “news”, reality TV, tabloids, popular music. We watch in smug satisfaction at the real world soap opera of celebrities. We’re ready to dehumanize groups of people, such as immigrants – legal or illegal – because of some perceived “wrong” they are doing to us.

OK, so what does this have to do with conflict resolution? Good question.

It was the tragic shootings at Virginia Tech and the round-the-clock news coverage that brought this whole issue into focus for me. I, like everyone else, watched in horror that first evening. I turned off some of the coverage, such as the cell phone tape of the sounds of shots being fired, especially when it was played over and over again. I was appalled a few days later when the video of the very, very troubled young man who shot the students and faculty at Tech was shown continuously it seems.

During that first night of coverage, when news reporters were trying to find anyone to talk to, I listened to the questions they were asking the shell-shocked Tech students. As a mediator, trainer of mediators and a 70s graduate of the journalism school at the University of Maryland, I was incensed to see the reporters escalating the tense situations by trying to “stir things up.” Questions designed to get people angry – to inflame the situation to make a “good story”.

Ironically, I was co-teaching a basic mediation course at the time of the Tech shootings. While the media, commentators and political pundits were using inflammatory language to escalate an already tragic situation, I was busy teaching people how to use words to DE-ESCALATE conflict situations. When a person is in conflict, they want to be “heard”, to be listened to. So they tell their “story” which is an account of what happened from their perspective. The key to feeling “heard” for people is to acknowledge what they are feeling along with the content of what they are saying. When people hear that acknowledgement, they can begin to let go of that anger.

However these same tools can be used to escalate conflict by using volatile words that stir up a person’s already whirling emotions. It is a fine line we all walk but an important and critical one in reducing conflict.

Let’s take a step back to a calmer and gentler America. If someone is trying to escalate a conflict you are in with volatile words, just say no and walk away. It might feel like you are loosing but you are truly winning.

Karen Richards
Ex-Interim Executive Director

ADR Goes Online

There is a plethora of mediation materials out there in book, audio, and video format, but they can be hard to find unless one knows what they are looking for. How could we in the mediation world make it easier for others to learn more about issues relating to conflict resolution and violence prevention? A project attempting to answer this question has been long in the works, but now it is available to everyone.

Recently a catalog of books and other media relating to mediation, negotiation, facilitation, conflict resolution, violence prevention, and peace-building has been added to the Community Mediation Center’s website. Anyone wishing to read up on topics covered in the ADR world can visit the site and buy the books through Amazon.com.

Additionally, any books, CD’s, or videos bought through the website will have a portion of their cost go to the Community Mediation Center’s youth and mediation programs.

Do you have a suggestion for a book you want to see offered? E-mail or write the Center with your request and it will be added to the list.

P.S. In addition to media related to mediation, bestsellers are also being offered. You can even pre-order the next Harry Potter book.

CMC Store Manager