Category Archives: ADR Scholarship

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 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.

Lawyers are from Mars, clients from Venus: differing perceptions of mediation documented in new book

lawyers and their clients inhabit parallel worldsAfter attending a breakout session at the 2009 ABA Section on Dispute Resolution Spring Meeting titled  “What Do Litigators Want from Mediation?”, I decided it was high time to ask “What about clients?“, writing a post that called for much closer attention to the needs of those directly affected by disputes. I’m glad I did, since it turns out that my readers and I are not the only ones concerned about questions of that kind.

The June 2009 newsletter of the Resolution Systems Institute is out and includes a review of a recent book (PDF), Perceptions in Litigation and Mediation: Lawyers, Defendants, Plaintiffs, and Gendered Parties, by Dr. Tamara Relis, a British Academy Research Fellow in the Law Department of the London School of Economics and Political Science.  Relis’s book describes a vast perceptual gulf between lawyer and client, who hold opposing views and expectations of mediation. From the review:

Relis uses quotes effectively to demonstrate the parallel worlds lawyers and parties inhabit. Moving chronologically from parties’ aims in litigation through their experiences with mediation, the quotes show that lawyers’ and clients’ views and experiences were often completely different. When asked what the plaintiffs wanted from litigation, lawyers unanimously stated it was entirely, or primarily, money. Plaintiffs, on the other hand, discussed a need for explanation, admission of fault by the doctor and/or hospital, and apology. Money was not their focus. These parallel worlds had a significant impact on the cases, the mediations and the resolutions because lawyers maintained control…

Relis documents striking differences not only between lawyers and clients but also between men and women:

Interviews also indicated gender differences among lawyers and parties in perspective and approach to mediation, and among mediators in their ability to control the lawyers. Female lawyers were more likely to see merit in the emotional aspect of mediation. Female parties were more likely to feel trepidation about the mediation, to be more concerned about how their statements were perceived, to be influenced by mediators’ statements and behavior, and to be less likely to talk during the mediation. Female mediators were viewed by the parties as being less in control of the lawyers and the mediation.

An excerpt from the first chapter is available for downloading.

Dr. Relis is also the author of an earlier work, “Consequences of Power,” an article that appeared in Harvard Negotiation Law Review and  available as a PDF download at the Social Science Research Network.  It describes a disconnect between attorneys’ objectives and those of their clients and shows that the intentions of plaintiffs and defendants in mediation are more closely aligned than one might suppose–and  all too often thwarted in their desire to communicate with each other.

I hope that my brothers and sisters at the bar are listening.

ADR scholar, pioneer Carrie Menkel-Meadow guest blogs this month at Concurring Opinions

ADR scholar Carrie Menkel-Meadow blogsFellow mediation blogger Victoria Pynchon and I are both really excited to learn that leading dispute resolution scholar Carrie Menkel-Meadow is a guest blogger this month at Concurring Opinions (covering “the Law, the Universe, and Everything”).

Readers of this blog will no doubt recall this post linking to a recent article by Professor Menkel-Meadow, which raised an important and timely question for the ADR field — “Why Hasn’t the World Gotten to Yes? An Appreciation and Some Reflections” (downloadable in PDF).

Visit Concurring Opinions to learn more about Professor Menkel-Meadow and her contributions to both ADR scholarship and the practice of mediaton.

Newly released paper considers "Untapped Potential in the Study of Negotiation and Gender Inequality in Organizations"

A newly released paper (December 2007), written by scholars Hannah Riley Bowles, John F. Kennedy School of Government, Harvard University, and Kathleen L. McGinn, Harvard Business School, considers the “Untapped Potential in the Study of Negotiation and Gender Inequality in Organizations” (in PDF).

Here’s an excerpt:

The literature on gender in job negotiations helps to explain gender differences in compensation among managers and professionals. It also suggests explanations for the gender asymmetric distribution of other types of negotiable resources and career opportunities within organizations. This literature shows that, even before any interaction takes place, gender is likely to influence the negotiation expectations of those who control the organizational resources and opportunities as well as of those who seek them. Particularly in contexts in which resources and opportunities tend to flow to men—for instance, because the industry, occupation or organizational hierarchy is male dominated—the expectations for men to receive such organizational benefits are likely to be higher than for women, and prenegotiation expectations tend to predict outcomes. Even if men and women have the same aspirations, gendered behavioral norms may constrain women from negotiating as effectively as men. For instance, concerned about the social risks of negotiating, women may be more reticent than their male peers to request greater resources and career opportunities.

(Via Docuticker.)

The ups and downs of conflict: a game theory analysis of the toilet seat issue

The toilet conflict has its ups and downsAs a way to announce my return to blogging following a brief hiatus, I begin with a post that concerns one of the world’s most intractable conflicts (at least since the invention of indoor plumbing): the battle over the positioning of the toilet seat–up or down.

Now comes the study that all you gender-conscious game theorists have long been awaiting. From The Science Creative Quarterly is a paper addressing “The Social Norm of Leaving the Toilet Seat Down: A Game Theoretic Analysis“, which models the game as a non-cooperative one of conflict (which anyone in a multi-gender household can tell you is a fully accurate representation).

We can all hope that researchers may next examine another vexing problem: which way to hang the toilet paper–over or under.

(Thanks to Boing Boing.)

More than we bargained for: does gender matter in negotiation?

Does gender matter in negotiation?Chances are pretty good that if you live in the U.S. and own a TV, you’ve probably seen the Kia commercial which depicts a husband and wife’s visit to a car dealership.

The husband is seated inside a minivan with the salesman, while his wife stands outside several yards away, watching intently but unable to hear the conversation. As the husband motions with his hands in a forceful, assertive way, he says to the car salesman, “I need to gesture aggressively with my hands so my wife thinks I’m really working you over.”

The point seems to be that Kia’s prices are so low that there’s no need to negotiate. But as a result this means that the husband must pretend to hard-bargain as a face-saving measure so his wife thinks that it was his tough negotiating style that got them the great deal.

You don’t need to be a Freudian psychologist or a radical feminist to divine the meaning of messages popular culture delivers regarding negotiation, or the ways in which it reinforces the differences—perceived or real—between men and women in negotiating behavior.

The type of negotiating we see in this ad is what pop culture typically depicts—competitive, winner-take-all, zero-sum bargaining, rather than the interest-based, value-creating, win/win negotiation promoted by ADR practitioners.

It’s hard to miss the fact that the negotiation, such as it is, takes place between two men, while predictably the woman remains on the sidelines (with the baby stroller). The message is clear: negotiation is a man’s job. And anything besides hard (racy pun intended) bargaining just isn’t manly. (Interest-based negotiation is for girly-men.)

Normally I tend to tune ads out (in fact, in my opinion, it’s why the “mute” button on the TV remote control was invented). But this ad caught my attention because of several articles I just finished reading on negotiation, which I invite you to ponder.

The first of these is “Legal Negotiation in Popular Culture: What Are We Bargaining For?”, by Carrie Menkel-Meadow, Director of the Georgetown-Hewlett Program in Conflict Resolution and Legal Problem Solving at Georgetown University Law Center.

This article, although not focusing on gender, explores the ways in which popular culture depicts legal negotiation and what these depictions reveal about our culture, including its consumers and creators. (Unsurprisingly legal negotiations are usually portrayed as high-conflict, win-lose battles between adversaries, rather than as creative, value-creating processes which result in greater gain for all participants.) It’s a well-crafted deconstruction of popular culture’s formulaic representations of negotiations in legal contexts.

Another article, “The Womanly Art of Negotiation”, written under a pseudonym, appeared last week in the Chronicle of Higher Education. It recounts the difficulties in negotiating for an academic position while a) female and b) pregnant. It offers thoughts on factors preventing women from being fully effective negotiators, including a tendency to believe that “nice girls don’t demand money”. (Something which this nice girl has never had trouble doing.)

So, are men in fact better negotiators than women? What difference does gender make to the ability to negotiate successfully?

A third article considers these questions. According to Hannah Riley, the author of “When Does Gender Matter in Negotiation? Implications for Public Leadership” (PDF), while it is difficult (and even unwise) to make generalizations about negotiating behavior on the basis of gender alone, her own studies and observations reflect the fact that at the very least women may approach negotiation differently from men.

The effects of gender, according to her theory,

depend systematically on two situational factors: structural ambiguity and gender triggers. Structural ambiguity refers to the clarity of information about the bargaining range and appropriate standards for agreement. With increased ambiguity, parties have to rely more on subjective assessments of the negotiating situation…

In studies of competitive bargaining…I found that when structural ambiguity was high, male negotiators had more optimistic expectations and negotiated higher payoffs than did females in mixed-gender pairs. When ambiguity was low, gender differences faded away.

What Riley also discovered was that when women believed that they were negotiating on behalf of someone else, they tended to ask for more than if they were bargaining for themselves. Riley observed that “The results suggest that the women did not lack confidence in their competitive bargaining ability, but rather felt inhibited about demanding value for themselves.”

Available online for downloading is “Gender as a Situational Phenomenon in Negotiation”, the complete report of the study Riley conducted together with Linda Babcock examining the impact of gender on behavior in and outcomes of negotiation.

Finally, for more information and statistics on gender and negotiation, visit the web site for Women Don’t Ask, the book Babcock authored with Sara Laschever, which discusses negotiation’s gender gap, identifies the challenges women face, and proposes some solutions.