What 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.
Four times each year, the American Bar Association Section on Dispute Resolution publishes Dispute Resolution Magazine, covering trends and news that affect ADR practitioners and scholars. An article I wrote about blogging appeared in the Summer 2009 issue. The folks on the magazine’s editorial board have kindly given me permission to upload it to share it here with you.
This article, “Only Connect: The Impact of Blogging on the Field of ADR“, describes how blogging has changed the way ADR professionals do business, share and debate ideas, and build meaningful personal connections across (and despite) time zones.
Here’s an excerpt:
In his 2006 book Conversation: A History of a Declining Art, author Stephen Miller evoked a golden age of discourse that England enjoyed in the 18th century. The seat of that renaissance of conversation was the coffeehouse, where wit and aphorism flourished. Men gathered to warm themselves with a dish of coffee, transact business, gather news, enjoy the latest gossip, and of course converse.
Although the British coffeehouse has largely faded from public memory, a spiritual descendant has emerged possessing many of its ancestor’s most distinctive attributes: the blog. Like its 18th century predecessor, the blog is simultaneously marketplace, library, and public square, with a wealth of views and ideas clamoring for consideration, attracting businesspeople, scholars, thinkers, writers, celebrities, and ordinary citizens.
ADR professionals and scholars perhaps would have felt at home in the 18th-century coffeehouse. We and the coffeehouse share similar virtues: ours is a field that promotes and pursues the exchange of ideas and information. It is fundamentally about conversation. And, like England in the 18th century, the ADR field is enjoying its own renaissance in discourse, one that flowers lushly online, thanks to the phenomenon of blogging, drawn to its capacity for bringing people and fresh thinking together…
For ADR bloggers and our readers, the phenomenon of blogging has dramatically affected us and the way we practice in three key areas: the business of ADR, the dissemination and discussion of information and ideas, and professional networking. I invite you to explore them with me…
The article also names some essential blogs to follow. Space constrained me, preventing me from adding all that I would. Here’s a far more comprehensive list of 24 outstanding alternative dispute resolution blogs to read regularly.
Those 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.
Recently Mediator Blah…Blah…, one of my favorite ADR blogs, sadly ceased publication. I will miss friend and fellow blogger Geoff Sharp’s intelligent, emotionally honest writing and wit.
Fortunately there are other blogs, written by talented, insightful practitioners, that can fill the void that Geoff’s absence has created. I have compiled a list of currently active blogs that I recommend to you, with a few words on why.
Creating a list like this was challenging, with so many worthy ADR blogs to choose from. I fear that some I may have inadvertently overlooked, and as I’ve written this post, I’ve had to change the number in the title several times.
I therefore invite you, gentle reader, to add your own recommendations in the comment section below.
Enduring Classics
These blogs have been around for quite a long time, in one form or another. The quality of their writing and the usefulness of the information they provide explain their longevity. They are:
- Settle It Now Negotiation Law Blog, by Victoria Pynchon, contains consistently superb discussion and analysis of issues in negotiation, as well as unflinching self-honesty and debate on controversial issues.
- Idealawg, by Stephanie West Allen, artfully weaves in discussion of law, conflict resolution, scientific discoveries, and creativity; will get your neurons firing.
- Campus ADR Tech Blog, by technological wizard Bill Warters, consistently links to useful tools and resources for ADR practitioners, trainers, and educators. A long-time favorite of mine.
- Making Mediation Your Day Job, by Tammy Lenski. Other ADR marketing “experts” have come and gone. To appreciate why Tammy’s site endures while others have long since faded away, visit the latest incarnation of her site helping mediators build successful practices.
- PGP Mediation Blog, by Phyllis Pollack. Phyllis leaves the door to the mediation room open just a crack so you can listen in and learn from her experiences at the table.
- CKA Mediation and Arbitration Blog, by Chris Annunziata. We all need a gutsy contrarian, someone willing to dispatch sacred cows or tell us when the emperor wears no clothes. Chris pulls no punches, whether tackling lawsuit abuse or discussing practice issues that the mediator in Georgia faces – such as this recent post on the “deregistration” of a mediator by the Georgia Office of Dispute Resolution.
Global Perspectives
These are blogs that present views beyond U.S. borders. They enrich our understanding of conflict resolution and negotiation.
- The Mediation Times, by Amanda Bucklow, U.K., addresses an international audience and seeks to expand the role of mediation to resolve disputes. (FYI, Amanda recently published the results of her own research on mediator skills and attributes.)
- ICT for Peace, by Sanjana Hattotuwo, Sri Lanka. This outstanding blog explores the use of technology for conflict transformation and the critical role of citizen media in social justice.
- MediAsian, by Ian Macduff, Singapore. Published by a relocated New Zealander – born in Malaysia, now living and working in Singapore – this blog discusses mediation and dispute resolution in Asia, including the role that culture plays.
- Reporting on Conflict: Peacemakers Trust Media Watch Blog, edited by Catherine Morris, Canada. This blog rounds up news on dispute resolution, conflict transformation and peace building, gathered from sources around the world. Essential for anyone interested in following international news on conflict resolution.
- Dialogic Mediation, by Arnold Zeman, Canada. This blog publishes less frequently than others, but quality not quantity matters. Consider for example, this illuminating article on transformative mediation, which got me to confront my own assumptions about this model of practice.
Newer Voices, Robust Discussion
These newer contributors have elevated the quality of discourse in the ADR blogosphere or have reinvigorated it with fresh ideas or new direction.
- Enjoy Mediation, by Jeff Thompson. If you want to catch the ascent of a rising star in the ADR field, read Jeff’s blog. Jeff has managed to snag an interview with new ABA Section on Dispute Resolution Chair Homer LaRue, garner media coverage for an innovative program that uses cricket and soccer to build bridges between the police and communities, and recruit a team of celebrity ADR guest bloggers – and that was just during the month of August.
- Settlement Perspectives, by John DeGroote. Published by a litigation veteran and accomplished negotiator, this blog uses real-life stories from the trenches to address difficult issues in negotiation and settlement relevant to counsel and client.
- Cross Collaborate, by John Folk-Williams. This blog, devoted to public policy collaboration, discusses methods for shaping and influencing government decisions and policies
- Mediation Matters, by Steve Mehta. Steve transforms his experience mediating complex cases into engaging and thought-provoking posts that share his reflections on ADR practice.
Specializations
These blogs focus on specialty areas in ADR.
- Loree Reinsurance and Arbitration Law Forum, by Philip J. Loree, Jr., contributor and editor. This niche blog is distinguished by scholarly, sophisticated discussion and analysis of issues in reinsurance and commercial litigation and arbitration.
- Disputing, by Victoria VanBuren, contributor and editor. Recently celebrating four years of blogging, Disputing focuses its writing on news and discussion on the resolution of commercial disputes through arbitration and mediation.
- IP ADR Blog, by Eric van Ginkel, Les Weinstein, Victoria Pynchon, and Michael Young. Expect from this blog high-level analysis of issues involving the resolution of intellectual property disputes, including business strategy and tactics.
- The Ombuds Blog, by Tom Kosakowski. An essential source for news and job postings for the ombudsman.
- ADR Prof Blog, by Andrea Schneider, Michael Moffitt, Sarah Cole, Art Hinshaw, Jill Gross, and Cynthia Alkon. To the best of my knowledge, this is the only blog with a special focus on ADR teaching and scholarship. Don’t assume that its academic pedigree signifies starchiness and pretense; on the contrary. Expect to find relevant news, useful links, and sly humor, delivered in an admirably concise package.
Easy Listening
This is the one podcast among this group of blogs. It is always worth listening to.
- International Dispute Negotiation, hosted by Michael McIlwrath and the International Institute for Conflict Resolution and Prevention (CPR). This high-quality podcast series featuring conversations with leading thinkers and practitioners with a global perspective on ADR. (I just wish that CPR would stop messing with the RSS settings for this podcast – I just discovered that the feed changed yet again, which meant that I missed learning of recent podcasts via my newsreader. Hint, hint.)
Unsung Heroes
These are blogs published by folks who consistently produce great writing but haven’t garnered the attention IMHO I think they merit. Here’s some link love for these deserving blogs:
Of course there are still roughly 200 other ADR blogs over at my other site, ADRblogs.com, which tracks and catalogs blogs from 30 countries across the globe.
For other outstanding blogs, see Mediate.com’s Featured Blogs page, or pay a visit to the world-wide gallery of ADR blogs at the web site of the International Mediation Institute.
NYPD officer detective and ADR professional Jeff Thompson has posted an interview with new ABA Section on Dispute Resolution chair Homer LaRue at his blog, Enjoy Mediation.
LaRue discusses the Section’s priorities for the coming years (but alas, does not reveal which blogs he reads regularly).
[Update, 8/28/2009: Jeff just alerted me that he has been promoted to NYPD detective. Jeff, congratulations on the promotion! I know it's well deserved.]
