HUMAN LAW MEDIATION

Do you want to make the 1st offer in a negotiation?

Recently I had the pleasure of meeting mediator and attorney, Vickie Pynchon. She introduced me to this concept of making the 1st offer (see previous post of mine) and the issue is continued on her Settle It Now blog.

"Hmm, anchoring to support aggressive opening bids? Doubtful, despite the academic literature -which in my opinion has little contact with real negotiation.

And nothing about coordination versus nash equilibrium reasoning? Big oversight, in my opinion.

Because I respect (and generally defer to) Michael's opinion, but because I disagree with him this time, I include here my response and open the discussion to our readers.  To help our readers, I'd like to ask Michael, if he has the time, to provide us with his thoughts about the coordination v. nash equilibrium reasoning that is absent from my Power Point Presentation (an absence I'd like to rectify before giving this presentation on the 13th of November)

Response to Michael:

For once in my blogging-career, Michael, I'm going to differ with you but ask for help on the coordination v. Nash equilibrium reasoning. 

It's difficult to "observe" the effects of anchoring and framing outside of a controlled environment. You need to have a kind of duplicate bridge experience where the bargaining partners are all negotiating the same deal to determine the effects of framing and anchoring. Research shows we'll all deny that we've been effected.

I have, however, participated in these types of role plays with "teams" of seasoned attorney negotiators.

In fact, it was the first of these experiences, on my first day of mediation training through the Straus Institute here in Malibu (at Pepperdine where the fires were yesterday -- terrible) that I experienced the power of anchoring first hand.

All twenty attorney teams negotiated a buy-sell contract for about 45-minutes. When we returned to the classroom, we all put our negotiated deals on the blackboard together with the first offer made.

I'd been taught as a young attorney NEVER to make the first offer -- folk practice where I come from, i.e., California.  In the role play, without exception, the negotiator who made the first offer in the hypothetical bargaining session got the best deal -- often by many magnitudes.

THIS is the moment when I decided I wanted to return to school to learn more about this and everything else having to do with negotiation -- rules of persuasion, the effect of cognitive biases, etc.

Since that time, what I've read in the academic literature on controlled negotiation studies, not only on students but on judges and attorneys and business people, has concluded that he who makes the first offer sets the bargaining range and gets the best deal.

As to Personal Bargaining Experience.

Since I've been mediating full time, I've helped lawyers negotiate hundreds of deals. Still, it's difficult for me to say whether the first offer had a substantial anchoring effect because I don't know how the negotiation would have turned out had the other side made the first offer or if the first offer had not been more or less aggressive. "

Also look at the comments on her blog. I like :

"Hello Victoria, From experience of dealing with "Travellers" -Irish roadside dwellers and dealers- I have to agree with you. About every second year I buy something from them, just to watch their methods and they always open high and early. They beat any academic for putting manners on a person. . . "

Amen.

Do you know how to negotiate?

There is a nice little piece about the world's most successful investor, Warren Buffet in the Business Magazine.

Whilst the article deals primarily with investment issues and how Buffet will capitalise on stock market turmoil, there is a brief mention on his 0n his negotiation skills which is "Buffett would never have achieved what he has with the help of homespun wisdom alone. He is a tough negotiator: one of his maxims is that you should never be afraid to offer too little when making a purchase; if they don’t like it, walk away."

Do you really want to mediate, Tony Blair?

I have previously posted about the mediation role of ex PM, Tony Blair in the Middle Eastern peace process.

As the Times writes under the headline, "Rockets and Chaos confront Blair as he grapples with peace mission".

"Tony Blair returned to the Middle East yesterday to confront a deepening crisis, as Israel threatened to turn off all power to the Gaza Strip after an Islamist rocket strike that narrowly missed a crowded nursery.

Since Mr Blair’s last visit two months ago Israel has faced an increasing military threat from the Hamas rulers of Gaza, who are trying to turn their guerrilla force into an army, and who are at war with Fatah, their West-ern-backed secular rivals in the West Bank.

Haim Ramon, the Israeli Deputy Prime Minister, threatened to cut off power and water to 1.5 million Palestinians living in the Gaza Strip after months of daily rocket barrages on Sderot, close to the Gaza border."

I am sure Blair is enjoying the challenge to some extent but at some point he may be thinking that the Northern Ireland peace process was a walk in the park. Talk about seeking new challenges post UK politics.    

Can Tony Blair succeed in the ultimate mediation role?

As has been widely reported, outgoing British prime minister, Tony Blair has now obtained his first post-premiership role as an international Middle East peace envoy. 

Two days ago, Blair was formally named special envoy for the Middle East in a bid backed by President Bush and his role will be to focus on narrow and technical topics rather than broader issues related to a final Israeli-Palestinian peace settlement, officials said. His assignment is to increase humanitarian aid, strengthen the Palestinian economy and improve the governance of the territories.

This role will no doubt entail use of mediation skills and in my view it is probably one of the ultimate mediation roles.

The question is do I think whether Tony Blair is up to the job.

In their book on mediation, entitled "International Mediation - The Art of Business Diplomacy " Eileen Carroll & Karl Mackie identify a series of a attributes which one should look for in a mediator.

Let us look at some of the key ones and see how Tony Blair fares under the attributes listed:

Background , Status  & Credibility- With a reputation as the  former British Prime Minister who has enjoyed a great deal of experience on the world stage, he is eminently qualified under this heading. With the support of the Americans who will no doubt be integral for any success of Middle Eastern peace agreement, Blair does have the gravitas to get the job done. Tick.

Intellectual Rigour - Even political opponents of Blair would recognise his intelligence. Irrespective of ones views on the quality of his regime, the most successful Labour Prime Minister for winning 3 general elections is testament to that.  Tick.

Integrity - Hugely controversial due to the Iraq war but it is significant that the arch Unionist, Dr Ian Paisley praised Blair at the end of Tony Blair's last appearance at Parliament yesterday. Fundamentally parties who deal with him at a negotiating level seem to respect him. Said against that, I am not sure if the new British prime minster would rate his integrity that highly. Take your pick.   

Independence - An intriguing aspect to the appointment due to Iraq war and with Hamas criticising the appointment. Said against that, Israel approve and so do mainstream Palestinians which in itself is a huge achievement. Tick.

Determination -A critical attribute in the mediator. I think his record in Northern Ireland is very good on the cv and for this reason is a tick.

Overall with his success in Northern Ireland(Did you ever think you would see Sinn Fein's Mark McGuiness and Dr Ian Paisley smiling at the same table together?), he seems eminently qualified for the role. 

Points of Weakness? - People may be overfamilar with him. In other words, I do not think a mediation role would work in the UK as he has polarised too many people due to the tribal nature of politics and the fact that his premiership was characterised by too much emphasis on media management. Frankly I think that he can do this role abroad but I am not sure how he would do a mediation role in the UK.

P.S 30/6/07 -Intersting article in the Telegraph today saying that Blair will have no power to mediate on peace. I suppose this calls into question my post on this being the ultimate mediation role. 

Does ADR undermine the rule of law?

This is a great post over on Diane Levin's blog about mediation together with a strong comment as well from China Law Blog.

She writes "I have written critically before of ADR's two-edged nature and encouraged my fellow ADR practitioners to consider with care their responsibility to the public and to our institutions of justice.

Of course we as a profession should ask ourselves these kind of questions. Does ADR undermine the rule of law? If justice is the end, is ADR the best means?"

China Law Blog weighs in "Great question. Never thought of it until now. I always tell my clients the mediator does not care if you walk away with a million or zero, he just wants the parties to settle. Am I wrong in this?

Here's another concern I have with mediation: it has become so prevalent and so automatic that lawyers under the age of 40 cannot even envision even trying to settle a case without mediation."

My thought - Whilst I believe in mediation and what it does to settle disputes, we are right to ask ourselves these questions as well. Like nearly everything it is no panacea and not without weaknesses nor ethical issues. We should explore this as well.

What causes conflict at work?

The CIPD has a survey dealing with Managing Conflict at Work.

It deals within an employment context and has findings on:

·        the impact of the statutory dispute procedures

·        training to manage conflict at work

·        mediation

·        formal disciplinary and grievance cases

·        employment tribunal claims

·        causes of conflict at work

·        sources of advice for UK employers in managing employment disputes

Case studies illustrate practice at West Midlands Police, Cobbetts LLT, Royal and SunAlliance, and Fife Council.

Only 30% of employers train any employees in mediation skills. This is much more common among public services organisations (53%) than among employers in the three other main sectors – particularly manufacturing and production (15%).

One in four respondent organisations used internal mediation (using members of staff trained in mediation skills) to resolve individual employment disputes in the last 12 months.

About a fifth of respondents report that their organisations used external mediation services (for example, ACAS) to resolve individual employment disputes in the last 12 months.

The survey provides some evidence that organisations that provide mediation training receive fewer employment tribunal claims. Organisations providing mediation training to employees received on average 3 employment tribunal claims in the last 12 months, compared with an average of 3.5 claims received by organisations that don’t provide such training.