Using technology to negotiate and mediate

Ross Paull |

It’s been an interesting few months reading about the negotiations regarding the financial crisis in Greece so it’s topical to compare and contrast different approaches to negotiating.

As per our Mission Statement, Guided Resolution’s cornerstone reference model is Interests-Based Negotiation (IBN), the same framework that mediators use to establish a non-adversarial pathway to resolving conflict. A variety of names are used to describe this form of negotiation with ‘principled’, ‘integrative’ and ‘win/win’ being the most common. The key to this method is that it focuses on mutual interests and can yield a better outcome for both parties through equal participation, information sharing and creative thinking.

There is a very funny scene in the comedy movie “The Hangover” which illustrates IBN being successfully practiced in unusual circumstances. During a bachelor party weekend in Las Vegas, the protagonists had stolen a police car were being interrogated by the unhappy sheriffs responsible for the vehicle. The sheriffs informed them that they wouldn’t be fronting a Judge until Monday morning, which meant they would miss their friend’s wedding.

In response, Bradley Cooper’s character says:

“I’m not a cop, I’m not a hero, I’m a school teacher but if one of my kids went missing on a school trip that would look really bad on me…no one wants to look bad. We’ve got to get to a wedding and you guys don’t need people talking about us obnoxious tourists who borrowed your squad car last night…I think we can work out a deal, discreetly of course Ma’am, what do you say?”. What stood out for me was the clear identification of each party’s underlying interests together with the clever framing at the start of his pitch!

Now compare this approach to that adopted by the Greek Government. Their negotiation style seemed to one of positional bargaining which is all about locked-in positions and stated wants, which can lead to win/lose outcomes. The problem with this method is that it inherently assumes that the metaphorical “pie” to be negotiated and divided is fixed. Distributive negotiations like this tend to fail for a number of reasons, including:

  • When the commonly held ‘fixed pie’ (or win/lose) assumption dominates the mindset;
  • When a deadlock results from a battle of wills; and
  • When negative emotions cause a failure to craft, frame and communicate a proposition that one could possibly say yes to.

Now the financial situation in Europe is complicated with no easy resolution but the Greek approach seemed unproductive and in the end yielded a poor outcome. I don’t want to get too academic on this topic but there are some IBN concepts that need explaining. Fisher and Ury’s seminal work in this field identifies fundamental methods to ‘expand the pie’ in a way that feeds the self-interest of both parties – unbundling, framing and brainstorming.

  • Unbundling. With respect to identifying issues, Fisher and Ury use a term called ‘unbundling’. In this context, when parties focus on a single issue, there is greater risk of a ‘distributional contest’ over a perceived fixed pie. The process of unbundling involves expanding the number of discussion points, which shifts the negotiation into a multi-issue dimension where mutual gains can be recognised.
  • Framing. Poor framing presents the other party with a problem. In Online Dispute Resolution (ODR), the technology itself performs a large part of the framing by heightening the forward, problem-solving focus.
  • Brainstorming. When both parties mutually address the problem, they increase their incentive to cooperate, along with the likelihood of future constructive interactions.  The two main ground rules for this are that the options are fashioned before they are evaluated (i.e. invent before deciding), and they are recorded in full view of all parties. Criticism may inhibit the flow of ideas, so brainstorming should be conducted in a way that initially outlaws negative criticism. Visual display of the ideas creates a tangible sense of collective achievement and helps stimulate other ideas; once all the ideas are recorded, the most promising options can be narrowed down and ‘starred’.

Early studies on computer-mediated communication have showed that long distance negotiations using information technology (i.e. email) generated more creative options for mutual gain and delivered significantly more equal outcomes than face-to-face (FTF) engagement.  In other words, the solutions were more integrative. The primary driver for this was the equalisation that occurs between stronger and weaker negotiators, which means that confrontational tactics become ineffective.

The online environment neutralises many of the triggers that can prompt confrontational interactions in FTF, and this frees the parties involved to concentrate on the task of problem-solving instead of ‘posturing’ and ‘face-saving’. A pertinent question is why disputing parties typically need to turn to a Third Party ‘neutral’ for assistance, and why, if negotiation is the most natural and common way to solve disputes, consensus can prove elusive. Disputants will typically turn to mediator practitioners to guide them through information-sharing, mistaken perceptions and other emotional issues that are communication-related; in doing so, they retain control of the resolution process.

The systemic steps used by mediation practitioners can be summarised as follows:

  • Open: establish protocols as they relate to the exchange of information;
  • Information gathering: organising the dialogue so that each party understands their version of the conflict and accurately identifies the problem that needs to be solved (‘separate the people from the problem’);
  • Issue framing: parties can then begin to explore their true underlying interests (‘focus on interests not positions’);
  • Option development: creatively derive options that satisfy some of the interests (‘invent options for mutual gain’); and
  • Formalised closure: select from the options and elaborate the agreement ‘using objective criteria’.   

Online technology is now better placed than ever to marshal the conflict in terms of issues and interests. In this regard, a well-defined problem is already half solved.