Assingment
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Week6mediationarbitration.spring18.ppt
Communication and Conflict
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Conflict through a CMNS Lens…
Transmission Model
Ritual Model
-society, symbols, objects work together to create sense of community that impacts the individual
-our reality is created through social interaction, as is our experience of conflict.
Conflict through a CMNS Lens…
Focus on the production and exchange of conflict messages
-Where does our experience of conflict come from?
-What do conflict messages look like?
-How do we understand these across disciplines?
-How do we understand these at different levels?
Comes from emotion, cognitive biases
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Building our skills and understanding of conflict…
Sociopsychological approaches
-supplies; building blocks,
Sociocultural approaches
-scaffolding; assumptions that we build and maneuver our ideas on
Humanistic approaches
-lens through which we view things; assumptions of the world (equality, actualization)
Catch-up
Emotions
Recognize how you respond to conflict
Build skills to achieve and maintain emotional balance
Recognize the emotional response in your partner
Use strategies to allow them to gain emotional balance
Regulate emotions through
Centering - acknowledging emotion and responding
Cognitive reappraisal - experience it/test it/ turn it
Mindfulness - you control emotions not vise versa
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Catch-up
5 Key concerns at the heart of conflict
Appreciation - acknowledgment and empathy
Affiliation - feeling of belonging and connectedness
Autonomy - respecting rights and directions of other
Status - respecting talents and characteristics
Roles - define, support and fulfill
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Today - Processes for Dealing with Conflict
Negotiation, Mediation and Arbitration
When we use them and why
BATNAs
Case Study - practice
Tactics
Mediation & Arbitration
Framework agreements
Roommate agreement
Case of the Jetta Swap
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- Jetta was a prize in a community school fundraising event organized by parents and a local Volkswagon dealership
- Winner went to collect the car at a ceremony covered by the local newspaper and discovered the car they were awarding her with was not the model she recognized in the lottery advertisement
- The organizers had not followed basic rules about disclosure that the winning car may not be exactly as displayed (didn’t want to look a gift horse in the mouth)
- The winner refused to accept the keys on the grounds that there was a “bait and switch” happening
- Set up a meeting with the fundraisers and car dealership providing the prize
- What would you do??
Negotiation, Mediation and Arbitration
- Negotiation
the opposing parties settle their differences on their own, without any third party to assist them.
saves the most money.
opposing parties may find it hard to stick to the deadline
the settlement may take longer
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What would this look like in the Jetta case?
Types of Negotiation
Distributive Negotiation
Goods or assets are available and each party wants to maximize the amount that they acquire (positional)
Integrative Negotiation
Emphasizes mutual gains through innovative solutions (interest based)
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Example
One orange and two people who want it. How do we decide who gets the orange? No store open
Discussion of what they want it for… one wants juice the other wants the rind for a cake.
Once this was identified, they both got what the wanted.
What would this look like in the Jetta case?
What does Negotiation look like?
- Preparation and planning
Participants
Power or authority to act on decision
How significant do they see this negotiation?
Location
Comfort, resources, home court advantage
What can be achieved?
What can I expect to get out of this (best and worst)?
What’s at stake?
What other outcomes (good and bad) can result?
What can I expect to get out of this (best and worst)?
-car that was promised
-reduce expenses
What other outcomes (bad and good) could result from this?
-retribution, profile, publicity
-reduce bad publicity
-lack of good will, trust, good name
Location – comfort, resources (powerpoint) home court advantage, power/ intimidation/ comfort
Participants – how much authority, power do they have when it comes to making the decisions?
-status suggests how important they see the problem
-respectful language, body language
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What to consider… BATNA
Best Alternative to Negotiated Agreement
The course of action that will be taken by a party if the current negotiations fail and an agreement cannot be reached
Standard - the bottom line -walk away point
Needs to be fair and realistic
Needs to consider tangibles and intangibles (eg. Relationships, time, money, reputation)
We tend to overestimate our BATNA and underestimate the range of options which results in a bad decision.
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“Well, if we can’t sort this out, I will just…” Your BATNA is what you will do – the cards you will play. (not necessarily what you want to happen)
Eg. Union can take their members out on strike, bringing work to a halt, impacting innocent people, embarrassing management, causing bad feelings.
Who has the better BATNA? They are in the stronger position... (not always easy to figure out)
Divide the room in half - two groups in each
In your group, consider the BTNAs in the Jetta Case - Winner and Car dealership
Are we making any heuristical mistakes?
Your Jetta BATNA
You are the Jetta winner, school fundraising committee members or the Volkswagon dealership.
Come up with your most compelling BATNA
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What to consider… BATNA
How to identify your “Best Alternative to Negotiated Agreement”
Brainstorm a list of actions you might take if no agreement is reached. (tangible and intangible)
Consider the BATNAs of the other parties…
Convert some of the more promising ideas into tangible and partial alternatives.
Select the alternative that sounds best.
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Consider the following:
1. The cost - Ask yourself how much it will cost to make the deal relative to the cost of your best alternative. Cost estimation may entail both the short term and the long term. It boils down to figuring out which of your options is the most affordable.
2. Feasibility - Which option is the most feasible? Which one can you realistically apply over all the rest of your available options?
3. Impact - Which of your options will have the most immediate positive influence on your current state of affairs?
4. Consequences - What do you think or estimate will happen as you consider each option as a possible solution?
Get Ready to Negotiate
With your BATNA in mind, come up with a statement laying out your position and your demand
Consider cost, feasibility, Impact, and consequences for each side.
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Consider the following:
1. The cost - Ask yourself how much it will cost to make the deal relative to the cost of your best alternative. Cost estimation may entail both the short term and the long term. It boils down to figuring out which of your options is the most affordable.
2. Feasibility - Which option is the most feasible? Which one can you realistically apply over all the rest of your available options?
3. Impact - Which of your options will have the most immediate positive influence on your current state of affairs?
4. Consequences - What do you think or estimate will happen as you consider each option as a possible solution?
Jetta Negotiations…
1. Pre-conflict - identify the parties involved
2. Determine issues, positions, demands
3. Explore implications of positions and demands
4. Gather any necessary additional information
5. Reframe the issue so that the parties can generate solutions
6. Generate options for possible resolution
7. Choose from options and come to agreement
8. Implement
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Let’s go through the steps to negotiating an agreement….
What does Negotiation look like?
- Ground Rules
Where will negotiations take place?
Will time constraints exist?
Will there be any issues that are off limits?
What happens if there's not any agreement?
- Opening Talks
Sets the tone (small talk, humour, comfort)
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What does Negotiation look like?
- Discussion
Emotional, debate, concessions, agreement, body language
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Nonverbal Tactics
Anchoring
-gaining the advantage by expressing his/or her position first and establishing the position from which the negotiation will proceed.
Eg. Personal Space
First Impression
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Personal Space: The person at the head of the table is the apparent symbol of power. Negotiators can repel this strategic advantage by positioning allies in the room to surround that individual.彦irst Impression: Begin the negotiation with positive gestures and enthusiasm. Look the person in the eye with sincerity. If you cannot maintain eye contact, the other person might think you are hiding something or that you are insincere. Give a solid handshake.[39]
Nonverbal messages
Conveying disagreement
Nervous Laugh
Mixed Messages
Aggression
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Nervous Laugh: A laugh not matching the situation. This could be a sign of nervousness or discomfort. When this happens, it may be good to probe with questions to discover the person’s true feelings.positive words but negative body language:
If someone asks their negotiation partner if they are annoyed and the person pounds their fist and responds sharply, what makes you think anything is bothering me?
Hands raised in a clenched position:
The person raising his/her hands in this position reveals frustration even when he/she is smiling. This is a signal that the person doing it may be holding back a negative attitude.
If possible, it may be helpful for negotiation partners to spend time together in a comfortable setting outside of the negotiation room. Knowing how each partner non-verbally communicates outside of the negotiation setting will help negotiation partners to sense incongruity between verbal and non-verbal communication within the negotiation setting.
Nonverbal messages
Conveying receptivity
Face and Eyes
Arms and Hands
Legs and Feet
Torso
Open hands; palms up
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Face and eyes: Receptive negotiators smile, make plenty of eye contact. This conveys the idea that there is more interest in the person than in what is being said. On the other hand, non-receptive negotiators make little to no eye contact. Their eyes may be squinted, jaw muscles clenched and head turned slightly away from the speaker
Arms and hands: To show receptivity, negotiators should spread arms and open hands on table or relaxed on their lap. Negotiators show poor receptivity when their hands are clenched, crossed, positioned in front of their mouth, or rubbing the back of their neck.
Legs and Feet: Receptive negotiators sit with legs together or one leg slightly in front of the other. When standing, they distribute weight evenly and place hands on their hips with their body tilted toward the speaker. Non-receptive negotiators stand with legs crossed, pointing away from the speaker.
Torso: Receptive negotiators sit on the edge of their chair, unbutton their suit coat with their body tilted toward the speaker. Non-receptive negotiators may lean back in their chair and keep their suit coat buttoned.Receptive negotiators tend to appear relaxed with their hands open and palms visibly displayed.
Negotiation tactics
Auction
Bogey
Chicken
Deadlines
Flinch
Highball/Lowball
The Nibble
Snow Job
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Auction:The bidding process is designed to create competition.
Bogey: Negotiators use the bogey tactic to pretend that an issue of little or no importance to him or her is very important.[32] Then, later in the negotiation, the issue can be traded for a major concession of actual importance.
Chicken: Negotiators propose extreme measures, often bluffs, to force the other party to chicken out and give them what they want.
Deadlines: Give the other party a deadline forcing them to make a decision.
Flinch: Flinching is showing a strong negative physical reaction to a proposal.
Highball/Lowball: Depending on whether selling or buying, sellers or buyers use a ridiculously high, or ridiculously low opening offer that will never be achieved.
The Nibble: Nibbling is asking for proportionally small concessions that haven稚 been discussed previously just before closing the deal.
Snow Job: Negotiators overwhelm the other party with so much information that he or she has difficulty determining which facts are important, and which facts are diversions.
What does Negotiation look like?
- Agreement
Effective dates, locations, terms of termination
Description of products, confidentiality (provisions for secrecy)
Responsibility for taxes, warranties and repairs
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Mistakes made in negotiation
- Making a negative initial impression
- Failing to listen and talking too much
- Assuming understanding
Hearing only what you want to hear
- Failing to ask important questions
- Interrupting the speaker
- Failing to read the nonverbal cues
- Failing to note key points
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Barriers to Negotiation
Die hard bargainers.
Lack of trust.
Informational vacuums
Negotiator's dilemma.
Spoilers.
Cultural and gender differences.
Power plays
Escalation – increasing hostility
Entrapment – maintaining an irrational position to belittle opponent
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1. Die hard bargainers - can’t move out of the competitive mode - just want to win at any cost
2. Trust - marriages; Dilemma of Honesty - giving too much information that could be used to take advantage
Dilemma of Trust - believing untruths to your peril
3. Informational Vacuum - missing info (resources; background) - Not recognizing power/ legitimacy of position/ law
4. Negotiator’s Dilemma – Collaborative or competitive – benefit both or win/lose?
5. Spoilers - actively seek to hinder, delay, or undermine conflict settlement for a range of reasons and through a variety of methods.
6. Power
Escalation - actions increasingly hostile - more at stake than original conflict
Entrapment - maintaining an irrational position to save face (cognitive dissonance)
Mediation
- Offers nonadversarial alternative solutions and helps draft final settlement
- When more sets of interests come into play
Personal, organizational/ business, labour, legal, financial
- Parties should mutually and voluntarily agree to mediation to make its decision legally binding.
- Also supervises the opposing parties in dealing with unrealistic expectations by assisting them in the bargaining process and relaying relevant information to each other.
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When negotiation isn’t going to work alone;
the opposing parties mutually designate a mediator who will assist them to come up with a common ground in an attempt to give them mutual benefits.
One of the most notable advantages of mediation is that the information presented by both parties will be confidential since the process will be conducted without the presence of the general public and jury.
On average, mediation may be completed within two to eight weeks, thus allowing both parties to reduce the cost of resolving a dispute.
When to go to Mediation
When the parties have conflicting views of the facts or law;
When clients or their lawyers can no longer effectively communicate with each other without the assistance of a skillful mediator;
When the parties are not skillful negotiators and need the process structure and negotiation expertise provided by a mediator; or
Need to protect in a confidential process reputations, good will, trade secrets, or a good name;
Seek to avoid the emotionally and psychologically exhausting process of litigation;
Seek to avoid the expense of litigation;
http://www.youtube.com/watch?v=LJahwN_dKb4
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How would this look in the Jetta case?
Considerations in Mediation
-Interests can be be things that directly or indirectly benefit the parties
“Substantial” interests are tangible (increasing wealth) or intangible (recognition)
“Nonsubstantial” interests are related to values, principles, history, identity (saving face) or preserving relationships
Emotions are acknowledged and managed through the process
Cultural differences, the cultural context of the conflict and cultural values also impact mediation
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Eg The husband was very difficult and would not stick to any one subject. He jumped from one to another totally unrelated issue and back again without resolving any. He was also loud and, at times, interrupted both his wife and the mediator. The exasperated mediator finally declared an impasse and that particular mediation went into her professional annals as one of her most difficult mediations.
Our experienced mediator also found out that, in some cultures, interrupting others is not rude but expected. Interruption often means attention and participation in the conversation rather than rudeness. Interruption is in some cultures a type of "active listening" and quiet passive listening may be a sign of lack of interest or attention. Our mediator also learned that there are cultural differences in styles of communication, some being much more expressive or affective than others. She learned that, what may seem as aggressive, warlike words, may not be intended as such by someone from a more expressive culture.
The mediator also found out that different people also have contrasting views on the application of rules to themselves and others. Universalists, for example, believe that rules should be applied uniformly while particularists believe rules should be applied according to the circumstances and people involved. A person's universalist or particularist orientation may affect not only how closely they follow the ground rules of mediation but also what importance they give to the details and specifity of the final agreement.
What is Arbitration?
Third-party neutral makes a legally binding or nonbinding decision on the case.
Parties loose control of the decision
“Award” is often based on law, but not always (custody)
More adversarial than mediation - pre-court with lawyers sometimes involved.
The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet the interests or needs of all relevant parties in an effort to resolve the conflict.
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Arbitration
- The opposing parties mutually designate an arbitrator (e.g., a retired judge or a business consultant) who will help them resolve a dispute.
- Usually, arbitration may be completed within three to four months, much shorter compared to a court litigation which may drag for several years.
- Another advantage of arbitration is that it usually costs less than 40 percent compared to court proceeding since there are few procedural rules and less formality.
- However, there is one major disadvantage of using this procedure: both parties cannot appeal the arbitrator’s decision unless they can prove there is an outright fraud during the process.
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What is a Framework Agreement?
Framework Agreements are agreements that broadly agree upon the principles and agenda upon which the substantive issues will be negotiated.
They provide standards that help define what constitutes a fair agreement.
Good agreements are 1) specific; 2) clear about dates and deadlines; 3) balanced; 4) positive; 5) realistic
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Cohabitation Agreements
-March 18, 2013 -People living together for more than 2 years are considered common law and have the same rights and obligations as a married couple.
-This means a 50/50 split of shared debts and assets, excluding pre-relationship property, inheritances and gifts.
-A split could (in rare cases) result in one partner claiming spousal support.
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Cohabitation Agreements
Agreements written before the breakdown of a relationship mean that both parties have discussed and agreed on key issues (car, real estate, child support, access, and custody).
The couple may not want a 50/50 split of assets.
The agreement may be set aside as unfair if duress, undue influence, unconscionability, or fraud have been part of the negotiation process
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Duress - one spouce threatens violence, forcible confinement or pursuades the other to sign - victim has not freely consented to sign
- economic duress - the result of immediately pressing and unaviodable economic troubles (hard to prove)
Fraud - incomplete or false or misleading information was disclosed at the time of the agreement (didn’t include a RRSP)
Unconscionability - one party held out inducements to persuade the other party to sign (allowing sole custody in exchange for the home);
or when the stronger takes advantage of the other’s weakness in extracting an unfair bargain
Undue Influence - one partner is vulnerable, scared, mental capacity is limited
Mistake - the agreement was not mutual, erroneous assumptions, underestimation of value of assets
Roommate Agreement
With a partner, work through the first page.
Consider this week’s question for your log:
- a) What was each roommate’s style of negotiation? How might this style impact the resulting contract?
- b) How much uncertainty was there as you worked through the details? How was uncertainty dealt with?
- c) How do you plan to deal with disagreements? Did you discuss this with your roommate? Identify three strategies that we’ve covered in class that you would use to deal with conflict with your roommate.
- d) Identify one issue you can not compromise on and explain why. What is one issue you can compromise on and why?
- e) What might influence your decision to end the arrangement with this roommate and move out?
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VIDEO HERE
Sources of power in a conflict
2. Rewards
Eg. Cooperate and you won’t be sorry… (implicit pay back)
3. Sanctions
Eg. You might win the case, but working here after will be very uncomfortable.
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What is the cost of this approach?
Sources of power in a conflict
Positional Power or the Power of Legitimate Authority
Eg. Like it or not - that’s the law.
You wouldn’t dare sue the boss.
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What is the cost of this approach?
Sources of power in a conflict
4. Force
Eg. I will get you and your children.
5. Information
Eg. You should know that no one has ever won this kind of dispute
8. Commitment
Eg. She just never gave up!
9. Relationship
Eg. It’s not worth making an enemy
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What is the cost of this approach?
Your Conflict Style
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Handout
Competing, collaborating, avoiding, accomodating, compromising
When Face to Face breaks down…
- Positional Bargaining
Competing for resources (prize)
Involves win-lose or compromise
Interest Based Bargaining
Cooperative attempt to meet the needs of both parties
Eg. Orange - both sides getting what they want by identifying underlying interests.
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When Face to Face breaks down…
- Negotiator’s Dilemna
If one cooperates and the other competes - one bad outcome and one good outcome
If both side compete - one mediocre outcome and one worse outcome (at best)
If both sides cooperate - good outcome
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- negotiator’s dilemna
Case of the Jetta
- Possible outcomes?
If one cooperates and the other competes - one bad outcome and one good outcome
If both side compete - one mediocre outcome and one worse outcome (at best)
If both sides cooperate - good outcome
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What are the possible outcomes…
if the one party competes and the other cooperates?
- She doesn’t compete - walks away from a nicer car; haunt her forever - best outcome for car dealership and charity
- Car dealership doesn’t compete - costs them more than the budgeted (unless…) - charity may not get same level of support - best outcome for her
If both parties compete
- She might get the right car but has to fight for it (time and money) but it hurts the charity she was supporting; dealership looks bad (PR); rel’p with charity bad
- The dealership gets to keep the more valuable car but looks bad; bad relationship with the charity and bad PR; unhappy prize winner.
