Red Lodge Clearinghouse

Negotiation

In any case, the perception among most individuals and organizations contemplating negotiation is that their participation may imply some form of compromise, or an admission of weakness. Fighting the good fight, and winning or losing, is often viewed as the preferred alternative to compromising with their adversaries.

Fortunately, compromise is not the only way to view negotiation. The ADR field has paralleled the development of modern negotiation theory in which parties in a dispute explore ways to satisfy multiple interests or achieve mutual gains. Like the two children who discover that they can divide their mother’s cupcakes by figuring out that one wants the icing and the other the cake, modern negotiators are finding that they can achieve mutual gains by systematically exploring each others’ underlying interests. Modern negotiation theory and practice, the foundation of ADR, depends on five interrelated and very basic concepts:

• Relationships
• Interests
• Options
• Criteria
• Alternatives

By Roger Fisher and  William Ury

Often referred to as interest-based or principled negotiation, or integrative bargaining, these concepts are derived primarily from the work of Roger Fisher and William Ury in their popular book Getting to Yes. Fisher and Ury advise negotiators to first “separate the people from the problem.”  In other words, negotiators will achieve better, more integrated outcomes if they recognize and deal with the substantive nature of the problem wholly independently of the people they are negotiating with.

Good negotiators can maintain positive working relationships with their “adversaries” and focus instead on their common problem. In this way, principled negotiators can be “hard on the problem and soft on the people.” Separating the people from the problem requires negotiators to actively cultivate positive working relationships with their adversaries no matter how they respond. Good negotiators are able to be “unconditionally constructive” in the face of intimidation from their adversaries and can turn contentious behavior into a constructive discussion of a shared problem.

How do they do this?  First by identifying and discussing underlying interests instead of debating hard-line positions. Positions are what we usually think of, or inquire about, when conflicts come to mind. A position is a stance someone takes on a contentious issue. We often demand that political leaders take stands, or positions, so that we know whether or not to throw our support their way. Positions are necessary and helpful in debates but can be damaging when it comes time to resolve a dispute or solve a problem. Then we need to know what interests underlie opposing positions.

While positions are the “what, how, when, or where” of a contentious issue, interests are the “why.” If your position is that cattle should be removed from public land (the what and how), your interests are likely that you want to protect biodiversity, restore ecosystem health, and prevent stream-bank erosion (the why). Conversely, if your position is that cattle should be maintained on public land (the what and how), your interests are likely that you would like to maintain a healthy ranching economy and preserve the ranching culture (the why). 

From a positional point of view, all the parties can do is debate the merits of their positions. While there may be value to such a debate in helping the parties identify the strengths and weaknesses of their position, the parties are not solving a common problem, which one might define in this particular situation as:

“How can we protect biodiversity, restore ecosystem health, and prevent stream-bank erosion while maintaining a healthy ranching economy and preserving the ranching culture?”

Locked firmly in their positions, the parties may not want to have this discussion and may prefer to debate the merits of those positions, thinking that they obviously cannot both protect and restore biodiversity and maintain a healthy ranching economy. This is where most natural resource negotiations generally end – before they really get started. If the parties choose to truly negotiate, however, it is very helpful to know each others’ underlying interests and to frame their problem jointly.

Once negotiators know each others’ interests, they can begin to generate options that satisfy those interests. Generating options requires negotiators to be as creative as possible and to suspend judgment of each others’ proposals. Generating options requires negotiators to engage in a brainstorming process wherein they propose and build on each others’ ideas in such a way that they begin to discover mutual gains. Mutual gains are not always possible but they will not be discovered unless the parties can successfully navigate their way to this stage of the negotiation process. The better the working relationship and the more they understand each others’ interests, the more likely that negotiators will invent options that satisfy underlying interests and achieve mutual gains.

Failing that, or discovering that there are no genuine opportunities for mutual gains, which is rare, inexperienced or positional negotiators have a tendency to fall back on positional bargaining and intimidation. For that reason, Fisher and Ury require principled negotiators to “insist on objective criteria” to resolve their differences when they cannot achieve mutual gains.

When a buyer and seller are negotiating over the fair price for a used car, for example, they will often consult the NADA Blue Book for an estimate of the car’s value. This value is independent of what the seller wants to receive or what the buyer wants to pay. If the negotiators can agree on a fair and legitimate criterion or standard, they can more easily agree on a price for the car. Likewise, if negotiators can agree to a common standard for determining rangeland health they will more be more likely agree to a decision to preserve biodiversity while maintaining a healthy ranching economy.

Much of negotiators’ willingness to agree, or to even enter a negotiation with their adversaries, depends on how they perceive their alternatives to a negotiated agreement. If they perceive their alternatives better than they do their chances to do well in the negotiation, they will more than likely not participate in a negotiated process. If, however, the pursuit of their alternatives will not likely lead to a positive outcome, they are more likely to negotiate with their adversaries.

Fisher and Ury require negotiators to assess what they call their “best alternative to a negotiated agreement,” or their BATNA. A negotiator’s BATNA is what he or she will do if the negotiation fails to produce a satisfactory agreement or what the negotiator can reasonably expect to achieve outside the negotiation compared with what he or she could reasonably achieve in the negotiation. From a purely rational perspective, negotiators should compare their negotiated agreement – the best they can get at the bargaining table – with their BATNA and choose the better of the two alternatives.
 

If you really take the time to think about it, parties that go to court generally assess their chances of winning as greater than their chances of losing. Otherwise they would not likely pursue a court action. Unfortunately, exactly half of them assessed their chances of winning incorrectly and will undoubtedly lose. Realistically assessing one’s BATNA is an important piece of information for a negotiator when he or she enters a negotiation since it helps determine whether a negotiated agreement should be accepted or rejected.

Interest-based negotiation among disputing parties can spontaneously occur, as we have seen in community-based resource management groups such as the Applegate Partnership, Malpia Borderlands Group, and the Quincy Library Group. This generally occurs when leaders on both or all sides of a conflict cross ideological boundaries and talk with each other. Often, however, leaders are unable or unwilling to cross such boundaries and need to be coaxed. That is where a mediator or facilitator can be helpful.

Mediation and Facilitation

Mediation and facilitation is a process wherein a neutral third party helps the negotiators follow the steps of interest-based negotiation described above. Mediation and facilitation are generally used in situations where negotiators either have difficulty following an interest-based process on their own or where a convening entity determines that the parties would be better served by the assistance of a neutral third party.

In most of the situations faced by resource-dependent communities in the West, the convening entity is a federal land management agency such as BLM or the U.S. Forest Service.  The more responsive of these agencies recognize that conflict is inherent in multiple use mandates, that such conflicts are best resolved through a collaborative process, and that it is the agency’s responsibility as resource manager to convene such processes. This idea is expounded upon in Daniel Kemmis’ excellent book Community and the Politics of Place.

Mediation and facilitation are used in the environmental and natural resource arena in four general areas depending on the nature of the conflict or decision that needs to be made. These are a) collaborative resource management, b) policy dialogue, c) regulatory negotiation, and d) joint fact finding.

Collaborative resource management is generally a long-term process in which people come together to collectively address the complexity of resource management issues that arise across an identifiable landscape. Collaborative resource management groups are usually defined by the boundaries of that landscape.

Policy dialogue is generally a long- or short-term process in which people come together to develop or alter a broad-based policy that affects the public. Policy dialogues are usually focused on the language of a specific policy that will provide direction or guidance to a government agency or industry sector.  

Regulatory negotiation is most often a short-term process wherein people come together to develop or alter a specific regulation or rule that will directly affect industry practices. Regulatory negotiations are usually focused on specific compliance standards that the industry must meet under current laws.

Finally, joint fact finding is generally a short- or long-term process in which people work together to formulate scientific and technical questions that inform decision-making, identify scientists and technical experts to gather and interpret data, and monitor ongoing scientific studies to jointly understand and act on their findings.

The common ingredient in all of these processes is interest-based negotiation. These are skills that can be taught through interactive training workshops using tailored role-playing exercises that engage participants in testing their skills in a safe, supportive, and fun environment. In fact, a tailored negotiation workshop involving the all of the parties can provide the ideal opportunity to initiate any of the processes described above.

Arbitration

Arbitration is the private, judicial determination of a dispute by an independent third party.  An arbitrated decision may involve the use of an individual arbitrator or a tribunal.  Where the processes described above leave decision making in the hands of the parties, arbitration requires that the disputing parties hand over their power to decide the dispute to the arbitrator(s). While arbitration is an alternative to litigation, it is generally just as final and binding (unlike mediation and negotiation which are non-binding). 

Arbitration is governed by state and federal law. Most states have provisions in their civil practice rules for arbitration. These provide a basic template for the arbitration as well as procedures for confirmation of an arbitrator’s award, a procedure that gives an award the force and effect of a judgment after a trial in a court.

While the process of arbitration differs among cases, the following is a list of the main steps found in most arbitration processes.

Request.  A request is made by one or both parties for a dispute to be referred to arbitration.

Appointment.  An arbitrator may be appointed directly by the disputing parties, by existing tribunal members, or by an external party (a court or an independent individual or institution agreed upon by the parties).

Meeting. The arbitrator and the parties usually meet, along with their legal council, to look over the dispute and discuss an appropriate process and timetable.

Statement of Claim and Response.  The claimant provides a summary of the issues in dispute and the remedy that is sought in a statement of claim.  The purpose of the statement of claim is to summarize the alleged facts, but not to provide the evidence to prove the facts. The respondent provides a statement of response either admitting or denying the claims. There may be a counterclaim by the respondent, which in turn requires a reply from the claimant. Together these statements are called the ‘pleadings’.

Discovery and Inspection. These are the procedures through which the parties investigate background information. Discovery describes the process where each party is required to list all relevant documents in their control.  Parties then ‘inspect’ the discovered documents and agree upon which documents are provided to the arbitrator.

Hearing. The arbiter then listens to any oral statements and witness questioning, and can ask for clarification of any information in a hearing. Both parties are entitled to put forth their case and be present while the other side states theirs. A hearing is not always required in cases where the issues can be dealt with entirely from the documents.

Legal Submissions. The lawyers of both parties provide the arbitrator with a summary of their evidence and applicable laws. These submissions are made either orally at the hearing, or put in writing as soon as the hearing concludes.

Award. The arbitrator considers all the information and makes a decision. An award is written summarizing the proceedings and giving the decisions. The award also usually includes the arbitrator’s reasons for the decision.

As might be expected, ADR specialists recommend that parties try negotiation and mediation/facilitation before they consider arbitration. Because negotiation and mediation/arbitration are voluntary and are controlled by the parties themselves, they tend to support community empowerment in decision making.

Resouces

Additonal Information

CR Info
A resource provided by the Conflict Information Consortium at the University of Colorado that includes a catalog of over 20,000 Web, print, and organizational resources, as well as event listings and other conflict resolution-related resources.

Government Programs

Alternative Dispute Resolution Guide
Descriptions of how the ADR process works in all federal agencies from A-Z.

Office of Collaborative Action and Dispute Resolution (CADR)
The office in the Department of the Interior that promotes, coordinates and facilitates greater use of alternative dispute resolution and consensus-building processes throughout the bureaus and offices of the U.S. Department of the Interior.

EPA’s Conflict Prevention and Resolution Center
How alternative dispute resolution is used at EPA and other resources including EPA-specific sources of neutral third parties.

Alternative Dispute Resolution in the USDA
Information for using mediation to resolve disputes with a rural development agency.

Natural Resource ADR Services

Red Lodge Cearinghouse Facilitation Directory
A state-by-state directory of facilitators and third-party neutrals.

The Keystone Center
Provides neutral assistance to those seeking to gain greater understanding, build consensus and reach resolution around pressing environmental and public policy issues.

The U.S. Institute for Environmental Conflict Resolution
An independent and impartial federal program, helps people find workable solutions to tough environmental conflicts and can help with finding a neutral third party anywhere in the U.S.

CONCUR
Facilitation and mediation services for environmental issues.

Institute for Environmental Negotiation
Mediation and consensus building services.

Meridian Institute
Mediation, faciliation, and process design services.

RESOLVE
mediation and negotiation: building consensus, managing science and technical information, selecting a mediator, convening questions and reports, participation agreements, conducting effective agreements, ground rules.

General ADR Services

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