Learn similarities and differences between the roles of negotiator, mediator, and fact-finder, and how to utilize each of these functions to help you reach your objectives. Show
"Negotiation" sounds formal, but actually it's an everyday activity for all of us. We negotiate with our families and friends - about what to have for dinner, about where to go on Saturday night, about whether we can afford to buy a piece of furniture or not, or about whether one of our kids can stay up late. We negotiate at work about our job conditions and salaries - sometimes informally, in conversation with bosses and co-workers; sometimes formally, in union bargaining. We negotiate in our communities about how our tax money will be spent, what town services we need, what kinds of industries and jobs we'll welcome or reject, and what we want for the future. Just as we all negotiate individually, organizations, coalitions, initiatives, institutions, and governments negotiate as well. Health and human service organizations may negotiate the conditions of a collaboration, or negotiate about which one will provide which services to which population. Environmental advocates may negotiate with developers or polluters about how to protect the natural environment while still allowing economic profit. Youth organizations may try to help gangs negotiate with one another to prevent violence. Businesses negotiate deals with other businesses and with local governments. And, of course, national governments negotiate treaties, trade agreements, border disputes, and just about everything else that goes on among them that isn't decided by war. As an advocate, in order to reach an agreement, you might feel that you need a negotiator to conduct the process for you - to know when to bargain, when to compromise, and when to play hardball. If you and the other parties can't reach an agreement, or don't trust one another, you might decide to call in a mediator, or to ask (or convince an authority to appoint) a fact-finder to examine the situation and make recommendations. This section will explain the differences among these three possibilities, and help you decide which, if any, would make the most sense in your circumstances. It will also discuss when and how to seek one of these options, and what to look for when you do.
Before you start...Some background information that relates to all of what follows:
Negotiation is a form of alternative dispute resolution (see #3 below), but not all negotiation involves disputes, or has winners and losers. Much, in fact, deals with situations where a settlement can be of benefit to both parties. Businesses working on an arrangement for mutual profit, organizations involved in a collaborative proposal, countries hammering out a trade agreement - all are aiming at a final result that will be good for all parties. The purpose of negotiation is, ideally, to reach an agreement in which each party feels it got the best it could out of the deal. Most Tool Box users probably won't be spending too much time on international trade agreements, but, in some parts of the world, Tool Box users do negotiate with local or national governments on arrangements for refugees, or on food distribution to drought-stricken communities. In the US, community groups often negotiate with banks or industries about providing loans or jobs in the community; organizations or coalitions negotiate with funders or state agencies about the amount of money available for services, or about reporting or oversight requirements; health advocates negotiate with health or insurance providers about services or costs; etc.. In many of these cases, a negotiator, mediator, or fact-finder may be unnecessary; in others, nothing may happen without one.
What is a negotiator?A negotiator represents one party to a negotiation. If the parties are organizations or businesses or institutions, she may be a staff member or other employee. Many corporations and universities, for instance, employ staff lawyers who act as negotiators for them in most circumstances. In the case of a community-based organization, it may be the director, either by default or because she has the experience. Where the resources are available, one or more parties may hire outside lawyers or professional negotiators to negotiate for them.
A negotiator represents only one party, and his job is to make the best deal possible for that party. He is not expected to be impartial. As we shall see, this characteristic sets him apart from mediators and fact-finders. Depending upon the circumstances and the parties involved, negotiators might emerge from a variety of backgrounds. Probably the largest number - of both those who make their living solely from negotiation, and those who engage in it as representatives of their employers - are attorneys. This is hardly surprising, since negotiation is a large part of what attorneys do, and they are trained in it from law school on. Negotiators, however, might also come from the ranks of labor organizers, business executives, community and political activists, psychologists, administrators, public officials, diplomats - in short, nearly anyone who has the experience and temperament to engage in high-stakes bargaining, and is familiar with the issues involved in a particular negotiation. A good negotiator helps you develop your conception of what you want and need. She can come up with suggestions about what should happen, about where to go next, and about how you can get what you want. She may have the final word on coming to an agreement (if she's the director of a negotiating organization, for instance). If not, you might authorize her to make or accept offers on your behalf, or she might have to confer with you about any possible offer. A good negotiator also pays careful attention to what the other party wants and needs. Understanding the other party's interests, rather than focusing only on his positions, can help her reach an agreement that leaves both parties feeling they got a good result. Such an agreement is not only fair, but is more likely to be kept. When is a negotiator needed?Negotiators may be needed in a variety of situations. In addition to those beyond the scope of most Tool Box users - international agreements and disputes, for instance - there are a number of situations in which you may find yourself where a negotiator would be useful in either resolving a dispute or drafting an agreement:
What is a mediator?While a negotiator represents one party or the other, a mediator is an impartial facilitator with no link to either party in a negotiation. He has no interest in the substance of an agreement itself, but is, rather, concerned with the process of helping the parties reach a satisfactory agreement on their own. Although most mediators undoubtedly would prefer agreements that are as fair as possible, ensuring fairness is not specifically the mediator's job.
Depending on the circumstances, mediators may work in a number of ways. They may, for instance, act as go-betweens for parties that are too angry or frightened or emotional to face each other. They may act, with both parties in the room, as impartial negotiators for both sides. They may function as interpreters, helping each party understand its own and the other's needs and interests, pointing out what's actually happening in the process, etc. In some cases, their job - imposed, for example, by the federal government in a labor dispute - may be to push both sides toward an agreement to end a situation that is dangerous or inconvenient to the smooth functioning of society. In any of these cases, however, mediators generally try to ensure that:
Mediators, like negotiators, might come from a variety of backgrounds. Some of the most common:
As you might guess from this list, mediation is used in a broad range of circumstances. In many court systems, all small claims and family cases are either initially referred to mediation or given the opportunity to try it before actually going to court. Divorce mediation is becoming increasingly common, as either a substitute for or in addition to negotiation by both parties' lawyers. Mediation has long been a standard fixture in labor disputes, especially in contract issues. Perhaps its widest and most important application is in public education: thousands of middle- and high-school students in the US are trained and serve as peer mediators in their schools. These youths not only reduce violence and improve the climate of their schools, but they bring an enhanced understanding of conflict resolution to their lives and to society as they become adults. What is a fact-finder?Like a mediator, a fact-finder is impartial, but there the similarity ends. Fact-finding, according to the American Arbitration Association, "is a process by which both parties present the arguments and evidence to a neutral person who then issues a nonbinding report on the findings, usually recommending a basis for settlement." Thus, fact-finders are not concerned with involving the parties in the solution, as a mediator is, or with not judging the substance of the case. They are, on the contrary, extremely concerned with the substance of the case. Their job is to sort out objective reality from each party's interpretation or version of it, and then to apply that reality to recommend next steps, or actual solutions. Fact-finders gather and assess information given to them by the parties, discovered through investigation, and gleaned from consulting with experts and others close to the situation. The goals of fact-finding may vary, depending on the situation:
A fact-finder's recommendations are non-binding. The parties - or the judge or other third party who appointed the fact-finder, if that's the case - need not adopt them. They are merely meant, by clarifying the situation, to provide some guidance in resolving a dispute or determining what should be done next. Thus, a fact-finder can be seen as a consultant, of sorts, setting her apart from both negotiators and mediators.
Why would you seek a negotiator, mediator, or fact-finder?
There are a number of reasons why you might decide to seek a professional:Negotiators
Mediators
Fact-finders
How do you seek a negotiator, mediator, or fact-finder?What kind of seeking are we talking about?"Seek" has three possible meanings here.
We'll look at each of these types of seeking separately. Seeking a negotiator, mediator, or fact-finder to help you resolve a dispute or come to a negotiated agreement The task here is relatively straightforward: finding public or private sources of professional ADR practitioners, and choosing one who you believe will handle your particular dispute or negotiation well. Depending on your financial resources, the context of your negotiation, and your preferences, there are a number of places to look.
Simply getting a name, or hearing that someone is "good" is not necessarily enough. Be sure to interview anyone you're considering, to find out whether she's the right person for your negotiation or situation. What kind of negotiation do you want? Some negotiators, for instance, always try to engage in principled negotiation; others may use a combination of principled and "traditional" (i.e., adversary) negotiation; still others may rely solely on traditional methods. Some mediators act only as intermediaries; others offer suggestions about possible agreements. The style of the person you eventually choose is important: it should both match the needs of the situation and be comfortable for you.
You should also find out beforehand what ethics potential negotiators, mediators, or fact-finders subscribe to; what kind of training and experience they have; and how they set their fees. Any one of these might influence whether you want to employ them or not. A final note: if you're looking for a mediator or fact-finder, involve the other party. Both parties must trust that the mediator or fact-finder chosen is truly impartial, and the process should be one that both can feel reasonably comfortable with. Without these conditions, the process is unlikely to be successful. Seeking to convince the other party to agree to negotiation, mediation, or fact-finding As explained earlier in this section, if someone is to negotiate with you, she probably must believe that you're on an equal footing. She also must feel that she's not placing herself in a position of weakness. If you choose a particular ADR provider and/or method, then present her with it, she could easily suspect that you're trying to gain an advantage, and may refuse to accept your offer. To avoid suspicion, start with the concept of ADR. Think about why the other party would want to accept negotiation, mediation, or fact-finding. For many of the same reasons you would, the reasons we discussed above in "Why would you seek a negotiator, mediator, or fact-finder?" Some arguments that might prove successful:
Demonstrate your good faith by involving the other party equally in choosing and structuring the process. In addition to extending an offer of a mediator or fact-finder, make sure that all the terms of the negotiation are jointly agreed upon:
If it's clear that you're acting in good faith, and that he has equal control over the process, the other party may be willing to cooperate. By sharing control, you create ownership of the process for both parties, and point the way toward a positive outcome. Seeking to convince a court, regulatory agency, or other authority to recommend or order alternative dispute resolution, or appoint a mediator or fact-finderIn general, you'd seek to have an authority impose or recommend ADR in a situation where a lawsuit is the alternative, where the other party refuses to engage with you, and where he is doing, or about to do, something you believe is not in the public interest. The issue can range from the other party's engagement in something outright illegal (misuse of public money, sexual harassment, flouting environmental laws) to disagreement over what constitutes an appropriate method of delivering services. Whatever the case, the goals would be to avoid going to court, to get the other party to deal with you, and to come to some satisfactory agreement as to how the issue will be settled. Where the other party is engaged in illegal or unethical activity, you can often appeal to authority by filing a formal complaint or invoking existing laws or regulations - which may call for ADR, at least as a first step. The authority in question might be a judge, a public regulatory agency or board, or a professional oversight body.
You might also appeal to an outside authority if negotiations are stalled or broken down. Judges, particularly, are often eager to see matters settled by negotiation rather than litigation. They may order or urge further negotiation or mediation (usually with a time limit), or appoint a fact-finder to gauge the situation and recommend options. Judges or federal officials often order mediation in labor disputes, for instance. Alternative dispute resolution is almost always a better way of settling a dispute or negotiation than going to court. It is more likely to produce an agreement that all parties can accept and uphold. It's not the end of the process - any agreement has to be maintained over time, and perhaps changed to respond to changes in circumstances. But it's a good beginning, and, when conducted well, can lay the groundwork for the development of a lasting and positive relationship. ADR won't be effective when the other party is unwilling to proceed in good faith, when he is unwilling to adjust his position, or when he is so opposed to what you're advocating for that he's ready to fight you to the end. In those situations - and advocates, unfortunately, often run into them - a lawsuit may be the best answer. We'll explore that avenue of settling disputes in the next section, Initiating Legal Action. In SummaryNegotiators, mediators, and fact-finders are all positions designed to help the parties involved in a negotiation or dispute come to an agreement. They're all practitioners of alternative dispute resolution (ADR), in that negotiation, mediation, and fact-finding are all alternatives to a lawsuit. A negotiator is employed by one party to a negotiation or dispute, and is not expected to be impartial. His job is to get the best deal he can for his client. In most situations, however, this goal is best served by attending to and satisfying the interests of all parties, so that everyone walks away feeling he got the best agreement possible. Principled negotiation, a method explained in Getting to Yes, by Roger Fisher and William Ury, is aimed at accomplishing this result. A mediator is an impartial facilitator who works with both parties to help them arrive at their own agreement. She is less concerned with the substance of the agreement - although fairness is often an issue - than with the process itself. She tries to make sure each party is heard by the other(s), that all have a chance to understand and clarify their own and others' needs, and that they arrive at an agreement themselves. Some mediators may actually suggest compromise positions, while others leave all problem-solving up to the parties. A fact-finder is also impartial, but his job is to determine, to the extent possible, the objective reality of a situation, and to make recommendations for resolving it. Unlike those of an arbitrator, the recommendations of a fact-finder are usually not binding on the parties. A fact-finder might be used to discover what actually happened in a situation where wrong or harm was done, or to resolve the truth in a dispute in which the parties disagree about where that truth lies. You might need a negotiator:
You might need a mediator:
You might need a fact-finder:
There are three ways you might seek a negotiator, mediator, or fact-finder. First, you might simply look for one to help you resolve a difficult negotiation or dispute. In that case, you might consult the Yellow Pages; the Internet; federal, state, and court-sponsored public ADR programs; community mediation programs; university law schools; the bar association and other professional associations; individual professionals in other fields; and word of mouth. In the second case, you might be trying to persuade other parties to agree to negotiation, mediation, or fact-finding. Here, your best strategies are emphasizing the positive aspects of the process - mutual benefit, low cost, saving of time and trouble, the opportunity to craft your own agreement, the advantages over the alternatives - and to make sure to involve the other parties in choosing a mediator or fact-finder and structuring the process. In the final situation, you might try to convince a judge or other authority to order or recommend mediation or appoint a fact-finder. You'd use this avenue if the other party simply refused to deal with you or the issue, if there was a question of illegal or unethical action on his part, or if you had reached an impasse in negotiations, and could go no further without help. Filing a formal complaint or urging the enforcement of existing laws or regulations might help, as might detailing the results of a failure to settle the dispute or negotiation in question. Alternative dispute resolution is almost always preferable to a lawsuit if it can be made to work. It can bring about an agreement that is mutually beneficial and will be kept by all parties, and can lay the groundwork for lasting relationships. Its results must be maintained and reexamined over time, however, if its effects are to be lasting. Online Resources The ABCs of Negotiation is an advocate’s guide to negotiating with providers to improve access to healthcare services. The American Arbitration Association. The oldest and largest of ADR organizations. Membership, training, etc. AAA maintains over 11,000 mediators, arbitrators, and fact-finders, who engage in over 200,000 cases a year, mostly with larger entities. The Association of Family and Conciliation Courts. An international, interdisciplinary membership organization for professionals focused on family conflict resolution and the best interests of the child. The Association for Conflict Resolution, a merger of the Academy of Family Mediators, CRENet (Conflict Resolution Education Network), and SPIDR (the Society of Professionals in Dispute Resolution). One of the major ADR professional associations, with listings of professionals by state and city. Advocacy Skills: Tips for Selecting a Good Mediator provides a variety of criteria that need to be taken into consideration when selecting a mediator for an advocacy campaign. The Advocate's Mediation Checklist is an excellent resource with detailed information on mediation and advocacy. The national website of CASA (Court Appointed Special Advocates), a volunteer program of court-appointed, trained fact-finders representing the interests of neglected and abused children. The Climate Change Knowledge Network: A survival guide for developing country climate negotiators. Although the material here is specific to climate change, much of it can be relevant to local advocacy groups and coalitions as well, especially if they're negotiating with forces much more powerful than themselves. Family Mediation Canada. A Canadian professional association of family mediators - interdisciplinary, focused on the best interests of the child. Georgia Alternative Dispute Resolution links to most other state ADR programs. The Mediation and Conflict Resolution Office (MACRO) of the state of Maryland. Mediate.com. Links to information on selecting a mediator from one of the largest ADR-themed sites on the Internet. Also on this site: The Electronic Negotiator, an article on negotiating by e-mail from Harvard Business Review, Jan.-Feb., 2000, pp.16-17. Te National Arbitration Forum. A provider of fee-based mediation in commercial, financial, and business situations. All mediators have at least 15 years of experience, and are qualified under any local laws or rules. The Negotiator Magazine. Ten negotiating tips from Ed Brodow. Negotiator Pro. Negotiation games and software. One game downloadable free; others from $12.95. The Program on Negotiation at Harvard Law School. The home of Getting to Yes. The US Federal Mediation and Conciliation Service. FMCS provides mediation, conciliation, and voluntary arbitration in labor-management disputes; works with government agencies and public stakeholders to facilitate the formulation of public policy; runs programs in technology-assisted dispute resolution and youth violence prevention; and trains organizations and government agencies in ADR and other areas. The website of Stephen Marsh, an attorney who teaches and practices mediation. Information on mediation, links, other ADR material. Print Resources Beer, J., Packard, C., & Stief, C. (2012). The Mediator’s Handbook: Revised and Expanded Fourth Edition. New Society Publishers. This book provides a time-tested, adaptable model for helping people deal with conflict. Beer. J., & Stief. E. (1997). The Mediator's Handbook. (3rd edition) Gabriola Island, BC, Canada: New Society Publishers. Cohen, H. (1982). You Can Negotiate Anything: The World’s Best Negotiator Tells You How to Get What You Want. Bantam. This book provides information on how to successfully negotiate. Fisher, R., & Sharp, A. (1998). Getting it Done: How to Lead When You’re Not in Charge. Harper Business. Fisher and Sharp provide an explanation as to why collaboration with others is difficult, and they suggest a new strategy to working with others. Fisher, R., Ury, W., & Patton. B. (1991). Getting to Yes. (2nd edition) New York, NY: Penguin. Meredith, C., & Dunham. C. (1999). Real Clout. Boston: The Access Project. Spence, G. (1996). How to Argue & Win Every Time: At Home, At Work, In Court, Everywhere, Every Day. St. Martin’s Griffin. Spence offers advice on optimizing oral presentation of an argument through use of story-telling and visual imagery. Which style of conflict resolution is considered a lose lose approach?Compromising style
The compromising conflict style is often referred to as the “lose-lose” method.
Which style of conflict resolution is generally regarded as the most effective?Collaboration is generally regarded as the most effective form of conflict resolution, especially in reference to task-oriented rather than personal conflicts.
Which conflict resolutions style occurs most often when one party has high levels of organizational power and can use legitimate or coercive power to settle the conflict?Competing occurs most often when one party has high levels of organizational power and can use legitimate or coercive power to settle the conflict.
Which type of power is derived from a person's skill or knowledge on which others depend?Expert power derives from a person's expertise, skill, or knowledge on which others depend.
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