Negotiation and Mediation

Negotiation may be regarded as a process by which two or more parties seek to come to an agreement on how to allocate scarce resources. Parties are interdependent since neither has complete power to choose. Some of the common problems encountered by an unprepared negotiator include leaving money on the table, whereby neither party gets what it wants; settling for too little; walking away from the table (with or without what it wants) or settling for terms which are worse than what it has at present.

People may be ineffective at negotiation because of the absence of relevant information or because of their inability to seek independent confirmation for their perspective, also known as reality testing. Other issues include failure to check their egos at the door; satisficing, which is aiming for a satisfactory or acceptable result as opposed to seeking an optimal solution or the fear of seeking change and experimenting with different outcomes (“better the devil you know”!).

Some of the myths surrounding negotiation focus on certain assumptions such as ‘good negotiators are born and not made’; experience is a great teacher; good negotiators are risk-takers or rely on intuition. Actually, negotiation skills can be learnt provided that persons engaged in the process are able to disabuse themselves of being too positional and to identify their underlying interests and viable options. This may lead to a broader understanding of what specific goals the negotiator is actually trying to achieve as opposed to seeking a resolution based primarily on financial issues. It may also cause the principled negotiator to understand the perspective of the other party instead of being focused exclusively on what s/he wants. This underscores the difference between a purely competitive negotiator and a co-operative negotiator.

Disputes which raise issues of political ideology or religious values can be extremely challenging because it is difficult to arrive at a compromise since a compromise can be viewed as a betrayal of values by either or both parties. However, even in international negotiations such as those involving border or territorial disputes, some common ground may be identified if the negotiator is astute and creative enough such as the Camp David Accord of 1978 between Egypt and Israel or the Good Friday Agreements of 1988 bringing peace between Northern Ireland and the Republic of Ireland.

Some of the key ideas in negotiation include identifying the Best Alternative to a Negotiated Agreement (BATNA), which would allow the negotiator to explore any alternatives to his or her substantive goals. It would also allow the negotiator to determine the reservation price, which is the minimum that s/he can settle for; the aspirational level, which is what s/he would like to achieve ideally and the bargaining zone, which is where negotiations generate the most activity so that parties may achieve some but not necessarily all the goals that they hope for. The Bargaining Zone is also referred to as the “Zone of Possible Agreement”, since both parties may find some common ground even if they are unable to achieve their aspirational level.

There are also two key types of negotiation: distributive and integrative. The former is concerned with determining how a fixed resource should be shared, the latter with expanding the range of possibilities which may be available. Many negotiations focus on the former and there are three key techniques which may be used to break a deadlock which can occur if neither party is willing to give way. The first is to make an initial offer, provided that it is a realistic one since, if pitched too low, can often alienate other parties in thinking that it is not a serious offer. It can also give one negotiator a psychological advantage in that the other side will likely have to provide reasons why it is unacceptable or to make a counter-offer. Second, the negotiator should consider making concessions as this will often have a positive effect in suggesting to the other party that he or she is flexible. However, the negotiator will want to allow some ‘wiggle room’ inthat, if the offer/counter-offer is pitched too high, there would be less room for manoeuvre into an acceptable outcome. Third, the negotiator should never underestimate the power of persuasion, which may range from an appreciation of cultural norms and values to an appreciation of appropriate and conciliatory language to effectively communicate with the other side.

Mediation is regarded as facilitated negotiation. Whilst negotiation takes place between the parties themselves, mediation will entail the presence of a third party neutral to guide the opposing parties through various stages of negotiation. The mediator does not determine the issue(s) to be resolved. Parties are generally at liberty to engage in negotiation or mediation before litigation. The modern approach of many legal systems is to encourage the parties to attempt to resolve the dispute themselves instead of an imposed solution through arbitration or litigation.

A skilled mediator is often an advantage in the domestic or international arena. He or she encourages the parties to adopt a problem-solving approach which facilitates communication in a more controlled environment. At the same time, it allows parties to vent their concerns about the treatment meted out by the other party. This is critical to de-escalating a conflict, improving communications between the parties and ultimately resolving the dispute.

Unlike arbitration or litigation, mediation is non-adjudicatory and does not lead to a binding solution unless the parties commit to written settlement terms which may be sanctioned or incorporated into a contract or court order. This is often referred to as self-determination in that it is the parties themselves who will decide if this is what they want. However, mediators play a critical role in a private caucus in being privy to additional information which may not normally be shared with the other party without consent. It also encourages a party to engage in a reality test on whether there are other viable solutions to what may be presented at the negotiation table.

One of the main challenges that negotiators and mediators face is a power imbalance between parties or the ‘David and Goliath’ syndrome. Ultimately, parties will have to commit to treating each other fairly and equitably during negotiations instead of ‘pulling rank’, particularly where a dispute may arise between parties of differing economic status. Other challenges may subsist where the parties have a history of poor or unsuccessful negotiations and are unwilling to trust each other or the process. The parties may also be engaging in a negotiation or mediation to assess each other’s strengths and weaknesses and may not be negotiating in good faith.

Nonetheless, mediation can be a viable option in dispute resolution where the mediator enjoys the confidence of both parties. As a third party neutral, the mediator can assist the parties to negotiate more positively with each other. The mediator can also anchor the process by focusing on common interests, providing a secure environment, both physically and emotionally and assisting parties to explore viable options. This can be achieved through brainstorming of ideas as well as maintaining confidentiality and instilling confidence in the process. The mediator may be able to steer the parties to their underlying goals and be alert to subtle or more obvious threats which may derail the process of open and participatory discussions leading to a viable solution.

Negotiation and mediation may therefore be seen as closely interrelated and intertwined. Negotiation is embedded in the mediation process but is also a discrete method of resolving conflict. Both processes embrace the concept of party autonomy. Increasingly, mediation is now seen as a part of the suite of measures being used by courts to ease their administrative burdens and to ensure that parties are involved in crafting their own solutions to disputes.

Contributor: Justice Anthony D. J. Gafoor

Justice Anthony D. J. Gafoor is Chief Judge and the Honourable Chairman of the Tax Appeal Court of Trinidad and Tobago. A Barrister, of Gray's Inn, UK, and an Attorney at Law of the Supreme Court of Trinidad and Tobago, Justice Gafoor has practiced extensively in the UK prior to being appointed to the Bench. A certified mediator and mediation trainer, a Fellow and Member of the Faculty of the Chartered Institute of Arbitrators (CIArb), UK and the Vice-Chair and Honorary Secretary of the CIArb (Caribbean Branch) as well as the Chair of the Trinidad and Tobago Chapter of the CIArb, Justice Gafoor is also the Secretary to the International Law Association (Caribbean Branch) and a member of the ILS Taxation Working Group on Taxpayers' Rights. He is currently a Senior Lecturer in Mediation Studies at the University of West Indies, St Augustine, and has also lectured and tutored in International Law, International Development Law, the Caribbean Single Market & Economy, Business Ethics and International Negotiations. He has acted as sole arbitrator in both domestic and international commercial arbitrations involving contractual dispute between international parties, and serves on the arbitration panels of the Jamaica International Arbitration Centre, the BVI International Arbitration Centre and the Arbitration and Mediation Court of the Caribbean in Barbados. He is a Member of the Mediation Board of Trinidad and Tobago, the International Bar Association (Mediation, Arbitration, Taxation and Ethics sub-committees) as well as a Member of the Association for Conflict Resolution and the International Association for Conflict Management, USA and Executive Adviser to the ADR Association, University of the West Indies, St. Augustine.