Category Archives: Negotiation and Settlement

Finger-licking good health care reform or indigestion? Bartering chickens for doctor visits

From the “You just can’t make this stuff up” file…

Bartering has grown increasingly popular among those seeking other ways to do business when cash is short. Bartering, of course, may not be the ideal fit for every transaction, as Republican Senate candidate Sue Lowden recently learned the hard way when she took heat for her proposal to remedy America’s health care woes and drive costs down: encourage patients to barter poultry for medical treatment.

As Steve Benen, Washington Monthly, reported:

“I’m telling you that this works,” the Republican candidate explained. “You know, before we all started having health care, in the olden days, our grandparents, they would bring a chicken to the doctor. They would say, ‘I’ll paint your house.’ I mean, that’s the old days of what people would do to get health care with your doctors. Doctors are very sympathetic people. I’m not backing down from that system.”

Some enterprising wag has helpfully created a handy online calculator that enables physicians and patients to determine the proper chicken exchange rate for common medical procedures.

The side I see: challenging assumptions, changing minds

It’s funny how the books we read when we are young stick with us. One such book for me was Robert Heinlein’s Stranger in a Strange Land, a science fiction story about a man, raised by Martians, who returns one day to Earth, and the clash of cultures and values that inevitably results.

What I recall most vividly were the Fair Witnesses, the licensed professionals that Heinlein invents for this book. Fair Witnesses receive extensive training in careful, impartial observation and assiduously avoid assumptions when called upon to provide their services.  In one memorable scene, one Fair Witness, Anne, demonstrates her unique skill to two other characters, Jubal and Jill. Jubal asks Anne, “That house on the hilltop — can you see what color they’ve painted it?” Anne  replies, “It’s white on this side.”

Jubal explains to Jill,

You see? It doesn’t occur to Anne to infer that the other side is white, too.  All the King’s horses couldn’t force her to commit herself…unless she went there and looked–and even then she wouldn’t assume that it stayed white after she left.

I never forgot what the Fair Witness said: “It’s white on this side.”  It’s unlikely that any of us is that precise or discerning when called upon to recount an incident or describe an object or problem.

Imagine the house on the hilltop. Now picture two people, each of whom stands facing a different side of the house, one person at the back, one at the front. Based on what they are able to see, front or back, each draws conclusions about the entire house – what color it is painted, what materials it is constructed of, whether repairs may be needed. But until each has left his original position and walked around the house, inspecting it from all sides, those conclusions remain suspect, based on incomplete data.

In teaching negotiation and mediation, I often discuss the scene from Heinlein’s book after administering an uncritical inference test known as “The Cash Register Exercise“. This exercise highlights the very human tendency to quickly fill in the gaps when information is missing and to draw assumptions about what we don’t know from what we do. (Click here to download the exercise and answer key in PDF.)

For those negotiating, information is indeed power. Examining issues from different angles can protect negotiators from bad deals or from missed opportunities.

For new mediators, the exercise and Heinlein’s story serve as a salutary reminder that our own assumptions can limit our effectiveness at the table. Cognitive error may blinker us, hampering us from helping those locked in conflict arrive at a more expansive understanding of the problems they face. The other lesson, too, is an obvious one: mediation offers fresh ways of looking at issues – from all sides, not just one, inviting parties to step away from their side of the house to see it in its entirety.

Seeing the house from all sides allows us to test or transcend our assumptions. Stepping away to gain a different view doesn’t mean giving up what you believe or need. With accurate and complete information, our conclusions can rest on surer ground. And it might even change our minds along with our vantage points.

The why's have it: teaching curiosity for effective negotiation and mediation

Cultivating curiosity in negotiators and mediatorsWhat makes Deepak Malhotra’s and Max H. Bazerman’s 2007 Negotiation Genius: How to Overcome Obstacles and Achieve Brilliant Results at the Bargaining Table and Beyond so highly readable are the memorable anecdotes of real-world negotiations it contains. Among my favorites is one that concerns a colleague of the authors, a “negotiation genius” identified by his first name only, “Chris”.

Chris’s firm was negotiating with a small European company to purchase an ingredient for a new health-care product. The two firms agreed on a price but became deadlocked over the question of exclusivity – the American firm did not want to invest in a product containing an ingredient to which its competitors would have access, and the European company refused to sell the ingredient exclusively to the American firm. The American firm, surprised by the stubborn refusal of their European counterparts to agree to an exclusive arrangement, offered more money and other incentives, but the European firm wouldn’t budge. Malhotra and Bazerman describe what happened next:

As a last resort the U.S. team called Chris and asked him to fly to Europe to join them.

When Chris arrived and took a seat at the bargaining table, the argument over exclusivity continued. After listening briefly to the two sides, he interjected one simple word that changed the outcome of the negotiation. With it, he was able to structure a deal that both firms found agreeable. The word was “why”.

Chris simply asked the supplier why he would not provide exclusivity to a major corporation that was offering to buy as much of the ingredient as he could produce. The supplier’s answer was unexpected: exclusivity would require him to violate an agreement with his cousin, who current purchased 250 pounds of the ingredient each year to make a locally sold product. With this information in hand, Chris proposed a solution that helped the two firms quickly wrap up an agreement: the supplier would provide exclusivity with the exception of a few hundred pounds annually for the supplier’s cousin…

Why didn’t the other U.S. negotiators ask this simple question? Because, based on their prior business experience, they assumed they already knew the answer…

Other factors, I suspect, may have been in play here, working against the U.S. negotiators. Etiquette and social pressures inhibit inquiry. From a young age we learn that “it’s not polite to ask questions”. As we grow older, we worry that asking questions will make us look stupid, singling us out for unwelcome notice by the group.

In defiance of these deep-rooted social and cultural taboos on question-asking, virtually every best-selling negotiation text urges negotiators to “get curious”. G. Richard Shell, author of Bargaining for Advantage, prescribes a process that he calls “Information-Based Bargaining”, which emphasizes the importance of question-asking and careful listening, lauding the “relentless curiosity” skilled negotiators bring to the table. Mediation trainers also encourage curiosity in their students, so that they can delve deep into the needs and motivations of parties locked in conflict. In their classic work, The Making of a Mediator: Developing Artistry in Practice, Bernard Mayer and Alison Taylor define such artistry as “a commitment to curiosity and exploration”.

If curiosity is so essential to effective negotiation and conflict resolution, can educators and trainers teach curiosity? That’s a question that Vanderbilt University Law School Professor Chris Guthrie considers and answers in “I’m Curious: Can We Teach Curiosity?” (PDF) (copyright 2009 DRI Press, Hamline University School of Law). Determined to go beyond the “glib references to the need for curiosity” in negotiation literature, Professor Guthrie offers a short primer on the scientific study of curiosity and proposes some curiosity-enhancing teaching strategies. He concludes with a link to an article that appeared in Psychology Today in September 2006, “Cultivating Curiosity“, by Elizabeth Svoboda, which recommends three tips on how to “flex your curiosity muscle“, whether you’re negotiating, mediating, or doing something else entirely.

Incidentally, Professor Guthrie’s article is one chapter in an outstanding volume on negotiation pedagogy, Rethinking Negotiation Teaching: Innovations for Context and Culture, a collective effort to rethink how negotiation is taught in the 21st century. Those curious to learn more about negotiation teaching can download Professor Guthrie’s chapter along with the others at the Hamline University School of Law web site.

Grain of salt: how much does mediator behavior influence the outcome of mediation?

taking mediation research with a grain of saltThose of us who mediate like to believe that our skills and temperament influence parties who are poles apart to move toward resolution, reconciliation, or settlement. But how influential are we really?

My colleague, attorney and mediator Stephanie West Allen, steers readers toward an article by ADR academics James A. Wall, Jr. and Suzanne Chan-Serifin, “Civil Case Mediations: Observations and Conclusions“, in the new edition of The Jury Expert. This article appears to cast some doubt on how mighty that influence may be.

Concerned by the absence of “empirical studies that report mediators’, plaintiffs’ and defendants’ behaviors in mediation or more importantly that indicate how the various participants’ behaviors may influence the process or the outcome”, authors Wall and Chan-Serifin undertook an inquiry into mediation practice, observing 62 civil cases conducted by 21 attorneys and eight judges with substantial legal and ADR experience.

These observations led them to some conclusions that mediators may find humbling:

When we reflect on our study and its results, we find civil case mediation is a lot like aspirin: it works, but we don’t know exactly how. Consider that we found mediation frequently resulted in settlements but the settlement rate was dependent upon the case type. In attempting to obtain agreements, mediators pressed defendants as well as plaintiffs whenever they expressed high aspirations; however, they pressed plaintiffs more strongly than the defendants. But their pressing – like all of their other techniques – appeared to have little effect upon case settlements.

What are the practical implications of these findings? The primary implication – for mediators – is that they should acknowledge that the outcome of the mediation (e.g., agreement or nonagreement) is to some extent independent of the mediator’s behavior. This suggestion is consistent with Judge Wayne Brazil’s charge that mediators should not exaggerate their responsibility, ability or contribution to the mediation (Brazil, 2007). Rather, they should understand that they are hosting a negotiation process. . . .

The final implication is for scholars as well as practitioners. In the last decade there have been approximately 80 articles that advise mediators on the tactics and strategies they should employ. They are told to control emotions, obtain apologies, overcome perceptual errors, facilitate, define the problem, evaluate, not evaluate, not believe attorneys, be neutral, be fair, improvise, manage risks, focus on central elements, etc. Most of these prescriptions and proscriptions should not be proffered, because they assume the mediators control the mediation process. As noted previously, our evidence, as well as that from other studies indicate mediators do not have substantial control over the process. Rather, it seems that the case type and the plaintiffs’ behavior are the more influential factors.

Mediators, don’t panic yet. Sixty-two civil cases mediated by 29 mediators does not seem a large enough sample to draw reliable, universally applicable conclusions from. Stephanie has already raised some good questions herself in her post. I would add some of my own.

  • What model or philosophy of mediation practice do these 29 mediators rely upon? It’s not clear from the article, and the differences among the various approaches to mediation practice, including the role that each participant plays and how broadly or narrowly issues are defined, are significant. They matter. I for one would welcome research that examines what influence if any different models of mediation may bear on resolving conflict. It’s time at last to test the assumptions that so many of us hold about the efficacy of the various models of practice (and of course we all have our favorites).
  • What about other kinds of disputes?  What would the results be if instead the study involved observations of disputes not in litigation – cases in which the law and the court play no role?
  • What about the identities of the participants themselves? Does it matter that the mediators were all members of the bar and that these cases involved attorneys and represented clients? What differences might we observe if the professional identities of the players were wholly different?

As provocative and arresting as the conclusions may be that the authors draw from their observations, I don’t think it’s time yet for mediators to rewrite their marketing materials or for mediation trainers and educators to revise mediation training materials or course outlines. The authors are correct to point out that we most certainly do need more studies of mediation. Our profession – and consumers of mediation services – would benefit from further and in-depth research that illuminates whether and how mediators influence the parties at the negotiation table.

Negotiation teaching 2.0: new book rethinks current approaches, considers culture

negotiation training - the second generation“But we’ve always done it this way” all too often stifles fresh thinking or bars the way to needed change. That’s why now and again it doesn’t hurt to shake things up.

And shaking things up in the world of negotiation training and teaching is a new book, Rethinking Negotiation Teaching: Innovations for Context and Culture, edited by ADR movers and shakers Chris Honeyman, James Coben, and Giuseppe De Palo. Published by DRI Press, an imprint of the Dispute Resolution Institute at Hamline University School of Law, this book is available at Amazon.com and, best of all, as chapter-by-chapter PDF downloads at the Hamline web site.

In his introduction, Honeyman explains why it’s time to reconsider how negotiation is taught:

The completion of one generation offers a classic moment to take stock in full of any social innovation. By some measures, including market success across a variety of disciplines, the teaching of negotiation has been a great success story, and has been relatively consistent. The cohesiveness and attractiveness of the interest-based model across law, business, public policy, international relations, urban planning, and other fields have been remarkable. From a base of essentially zero courses in 1979, nearly every law or business school in the U.S. now has at least one course in negotiation, and many other countries are at various points on the same path. But that very success has combined with the inchoate nature of an interdisciplinary field to mask the inherent challenge created by the separate discoveries of many disciplines.

Over the last three decades those discoveries have been many. But by and large, they have not yet been incorporated in current teaching in any organized or consistent way. This book, together with the simultaneous publication of the Spring 2009 issue of Nego-tiation Journal, [Volume 25(2), with a special section guest-edited by the same editors], marks the first results of an interdisciplinary effort to make sense of these discoveries. We intend to revamp the teaching of our field across many settings and cultures.

I have already begun to dip into this superb collection of articles. Among those that grabbed my attention are these:

  • Moving Up: Positional Bargaining Revisited“, by Noam Ebner and Yael Efron. (“If we are going to teach our negotiators to succeed in real life, they contend, we are going to have to teach them to bargain. The authors offer a fully worked-out exercise to do just that.”)
  • Reflective Practice in the New Millennium“, by Michelle LeBaron and Mario Patera. (“LeBaron and Patera use their own cultures – Canadian and Austrian respectively – to examine the teaching assumptions of a group of top-flight teachers of negotiation. They discover a number of unstated theoretical assumptions, heavily influenced by Western thought in general and U.S. culture in particular, and demonstrate alternate assumptions which might better guide second generation training”)
  • Death of the Role-Play“, by Nadja Alexander and Michelle LeBaron. (“Alexander and LeBaron argue for a…determination toward removing role-plays from their enthroned position in negotiation training. Their substitution by younger, more vigorous teaching tools, they argue, would be good for the commonweal.”)

If you’re a negotiation trainer or teacher who’s ready to reboot their own thinking about how to teach negotiation, this is one book you’ll want to add to your shelf.

Thinking outside the pie: using mediation is no compromise

Think outside the pie with mediationYesterday I discussed an article on mediation that appeared in USA Today, dismayed by its depiction of mediation as a free service provided by volunteers.

But that was not the only problem that caught my attention. The article also quoted a critic of mediation who mistakenly charges that mediation “is a ‘terrible idea’ because it presumes the victim must accept some kind of compromise.”

Here is yet one more misapprehension that the public has about mediation – that the best outcome it can produce is compromise- a split-the-baby result that leaves all parties equally dissatisfied. This tells me that we mediators need to keep at it, countering and correcting these misunderstandings.

Let’s keep on getting the word out there that in mediation, disputants don’t just divide the pie, they can expand it. Ask yourself, is your negotiating style leaving value on the table? If so, you just might want to ask a mediator for help.

Meanwhile, maybe we mediators need a new motto – something along the lines of “We don’t compromise when it comes to helping you negotiate.”

Outwitting the leopard: deception at the negotiating table

outwitting the leopard

The other day a friend emailed me the following joke, which has circulated widely on the internet:

A wealthy old lady decides to go on a photo safari in Africa, taking her faithful aged poodle, Cuddles, along for company. One day the poodle starts chasing butterflies and before long, Cuddles discovers that he’s lost. Wandering about, he notices a leopard heading rapidly in his direction with the intention of having lunch.

The old poodle thinks, “Uh, oh! I’m in deep trouble now!” Noticing some bones on the ground close by, he immediately settles down to chew on the bones with his back to the approaching cat. Just as the leopard is about to leap, the old poodle exclaims loudly, “Boy, that was one delicious leopard! I wonder if there are any more around here?” Hearing this, the young leopard halts his attack in mid-strike. Terrified, he slinks away into the trees. “Whew,” says the leopard, “that was close! That old poodle nearly had me!”

Meanwhile, a monkey who had been watching the whole scene from a nearby tree figures he can put this knowledge to good use and trade it for protection from the leopard. So off he goes, but the old poodle sees him heading after the leopard with great speed and figures that something must be up. The monkey soon catches up with the leopard, spills the beans and strikes a deal for himself with the leopard.  The young leopard is furious at being made a fool of and says, “Here, monkey, hop on my back and see what’s going to happen to that conniving canine!”

The old poodle sees the leopard approaching with the monkey on his back and thinks, “What am I going to do now?”, but instead of running, the dog sits down with his back to his attackers, pretending he hasn’t seen them yet. Just when they get close enough to hear him, the old poodle says, “Where’s that damn monkey? I sent him off an hour ago to bring me another leopard!”

I like this joke. Not only is it workplace safe, it’s funny, builds suspense, and ends with an unexpected twist. Best of all, it inspires a lesson or two about negotiation.  After all, in negotiation, you have to be clever enough to spot trouble when it’s coming, and nimble to respond to change and new information. You also must be careful not to underestimate the resourcefulness of any of your fellow players at the table — as the monkey unhappily discovers.

In real-world negotiations, it’s a safe bet that none of us will ever have to outsmart a cunning poodle or a talking leopard and his monkey sidekick.  But how can we protect ourselves from those who would deceive us?  A recent paper considers deception at the negotiating table in “Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help“. From the article:

…lawyers, businesspeople, and everyone else who engages in negotiation must learn how to carefully and purposefully implement strategies and behaviors to defend themselves against those who lie and deceive—no matter the reasons prompting it. I therefore conclude the Article by offering prescriptive advice (including examples) for minimizing one’s risk of being exploited in a negotiation should other parties lie. The advice is undergirded by the notion, expressed throughout the Article, that information exchange (or lack thereof) plays a pivotal role in all negotiations. Indeed, I argue that information is the lifeblood of any negotiation, and therefore that the various strategies and behaviors influencing whether, when, and how information is obtained and/or exchanged are extremely important in the process of defending oneself (or one’s client) against lying and deception.

The moral: it’s a jungle out there.

Negotiating disability

barriers to negotiationLast summer an online magazine for entrepreneurial women elevated form over substance when it advised its audience to accessorize for that big negotiation and mimic the “look” of the person on the other side of the table. I responded with a post criticizing the undue focus on physical appearance:

Behind it lurks a whole array of social justice issues uncomfortable to discuss but urgent for us to face — women and aging, youth and beauty, race and skin color, antipathy toward the obese, prejudice against those with disabilities or deformities.

In urging women to “mimic” the look of their bargaining counterpart, how would the author of this article counsel the 60-year-old woman negotiating with her 30-year-old prospective boss? Or a woman of color negotiating in a predominately white workplace? Or a woman wearing a hijab? Or a woman with a face disfigured in a car crash, negotiating with people who are unscarred and whole?

We are told not to judge a book by its cover yet repeatedly we do nonetheless, reducing others to something less than the sum of their parts. We make snap judgments, too often wrong ones, on the basis of physical appearance. We mistake mere emblems of authority — the business suit or the white coat — for actual authority. We rely on beauty as a proxy for intelligence, social skills, and talent.  And our discomfort with differences can lead those who are not disabled to stigmatize and shun those who are.

Consider the recent case of BBC children’s television host Cerrie Burnell. The BBC’s decision to cast Burnell, who has only one hand, sparked strong reaction from some parents who claimed that her disability would frighten children.

The BBC made the decision to hire Burnell; others obviously would not have. For those with disabilities not all barriers are made of concrete or stone. And some still block access to a seat at the negotiating table.

(Hat tip @NaropaPeace.)

More negotiation lessons from humor

Questions before decisionsLast fall, in “A negotiator walks into a bar“, I passed along a humorous story offering lessons in problem solving that a friend happened to email me. Over the weekend, this same friend emailed me another joke, which likewise serves double-duty as a cautionary tale for negotiators.

Here it is:

A large company, thinking it was high time for a shake-up, hired a new CEO.

The new boss was determined to rid the company of all slackers.

On a tour of the facilities, the CEO noticed a guy leaning against a wall. The room was full of workers, and the CEO wanted them to know that he meant business. He walked up to the guy leaning against the wall and demanded, “How much money do you make a week?” A little surprised, the guy looked at him and replied, “I make $400 a week. Why?”

The CEO pulls out his wallet, hands the guy $1,600 in cash and yells, “Here’s four weeks’ pay, now get out and don’t come back!”

Feeling pretty good about himself, the CEO looked around the room and asked, “Does anyone want to tell me what that slacker did around here?”

For a moment, silence reigned. Then, a worker close by gathered the courage to speak up: “Pizza delivery guy from Domino’s.”

The moral of the story: ask questions before you decide, not after.

Girl Scouts get to yes with lessons in negotiating

teaching girls to negotiateRecognizing how important the acquisition of negotiation skills is for women for educational and career advancement, Carnegie Mellon University’s Program for Research and Outreach on Gender Equity in Society (PROGRESS) has developed a negotiation badge to be awarded to Girl Scouts in fourth through sixth grade who have participated in a curriculum that teaches them negotiation and problem-solving skills.

This program not only teaches girls how to ask for what they need and negotiate win-win agreements, it also encourages them to pass along what they have learned to others:

Now that you have learned about negotiation, share your knowledge with a friend, sibling, or relative. Teach them the steps to negotiation, and the importance of approach, preparation, and practice.

You can download the activity book (in PDF) from the PROGRESS web site.

You go, girls.