Since the end of World War II, in which the specter of nuclear war impelled the development of more “scientific” methods of conflict management, negotiation and mediation were re-invented into a more “rational” and acceptable form. In the process, however, the history of negotiation, a process that has always been and continues to be suspect, began to be further minimized or disregarded as irrelevant. The awareness of the evolutionary development and natural history of negotiative behaviors, however, offers an important and more complete perspective that allows practice style orthodoxies and heuristic biases that undermine practice effectiveness and competency to be exposed. Neglecting this history limits the future development of new negotiative approaches which are critical for the management of conflict in a world where the complexity of human decision making and collaboration are being ever more quickly revealed by advances in neuroscience and cognitive psychology.
Every human being negotiates at some point in his or her life, on some matter or another, some more effectively than others. We have survived and thrived as a species largely because of this ability. And, of all the modes of conflict management, negotiative processes are the most flexible, efficient, economical and eminently sensible in the human repertoire for managing issues, differences, and controversies. In early human history, those disputes mostly occurred within and between individuals, families, tribes, and communities. Yet, despite the abject necessity of negotiation for human survival, the activity remains suspect in the minds of most people even—or especially—in more recent centuries, as societies have become more socially, politically, technologically, and economically complex and the need more profound than ever.
Negotiative behaviors and processes is intended to describe the constellation of acts and communications that extend beyond any particular negotiation and encompasses every manner of expression or action, whether formal or informal, that serves to manage, minimize, or settle issues or differences that arise between people. The most common of these processes are direct negotiation among and between the primary parties involved in a controversy, or mediation—a hybrid form— when the negotiation process is aided by a third party. Many people and practitioners view negotiation and mediation as distinct and separate processes, but the strategies, techniques and skills are essentially the same for both; only the format is different. Impromptu informal negotiations or mediations can take place tacitly or through gestures of agreement or disapproval, or by formally arranged meetings, face to face or asynchronously. In every family or workplace, friends, family members, co-workers, colleagues, or managers, alternatively negotiate, serve as de facto mediators, or are the participants in a mediation. (Lax, David A., and Sebenius, James K., The Manager as Negotiator, 1986) More formally, in larger organizations or agencies, there are appointed ombudspersons whose role is to use mediative techniques to manage internal organizational stresses and disputes. However, unlike a judge, arbitrator, special master, fact finder, or other third party who has the authority to impose a result or determination in a controversy, either by law or contract, negotiators and mediators have no such power or authority, although sometimes arbital, negotiative and mediative processes are joined or overlap. (Brown, Henry, and Marriott, Arthur, ADR Principles and Practice, 3rd ed., 2011) Negotiation and mediation processes are uniquely voluntary and the authority of the practitioner requires the assent of the other party or parties. Negotiative processes are used in every substantive context where disputes arise, including: health care and educational systems, business transactions, politics, public policy formulation and legislation, legal disputes, geopolitical affairs between nations, environmental and sustainable development issues, and in scientific and medical research decisions. When rules, laws, regulations, and formalized policies cannot or do not effectively serve to settle controversies or issues that require greater nuance or flexibility, negotiation and mediation are the primary means by which people reach some level of accommodation to live and work together.
Many conflate communication with negotiation, believing that the display of empathy and understanding are sufficient to resolve issues or conflicts. While the capacity for empathy and ability to communicate are essential components, they are not a substitute for effective negotiation. Negotiative behaviors are the give and take that leads to workable arrangements between people, often times in circumstances where empathy and communication are only barely present. Negotiative behavior is the muscle and bone that converts the visceral human instinct to survive and the recognition that collaboration and cooperation are required, into reality, regardless of the relationship of those involved.
The Evolutionary Process
Human negotiative behaviors, rituals, approaches, have evolved in form over the centuries, adapting to shifts and changes in the surrounding social, biological, political, cultural, and economic environment. Those behaviors, not unlike every other manifestation of human biology physiology, psychology, and language, are subject to the basic principles of Evolutionary Theory. Arguably, the human brain itself, which has increased in size over the centuries, is due in part to an increased use of negotiative processes. Some physical anthropologists conjecture that the change is not so much a function of the need for a greater reasoning capacity, but rather to manage and deal with the increased complexity of social and political affairs and the need to process and deal with those interactions. Specifically, as people have come to live more closely together in larger and more dense cities, they have a greater need to be able to detect and protect themselves from deceptions and potential threats from others, and in turn, to be similarly strategic in their own dealings. (Dunbar, Helen, Grooming, Gossip, and the Evolution of Language, 1996) Language and communication skills have similarly evolved in response to the changing nature and demands of social relationships, political systems and governing structures. (Pinker, S., The Language Instinct, 1994, and The Better Angels of Our Nature: Why Violence Has Declined, 2011) As to whether such evolutionary adaptations can be labeled as positive or negative and signs of human progress, or not, is another issue.
Negotiation is Not a Uniquely Human Behavior
The natural history of negotiative behaviors and rituals does not begin with the human species. Sometimes human hubris can block or marginalize our awareness that all animal species exhibit rudimentary forms of negotiation behavior, many of which are apparent in the human behavioral repertory. While humans clearly have a higher level of consciousness, the ability to think conceptually, and advanced language skill, at core, not unlike all other species, we have an innate biological instinct to survive. To that end, we have necessarily developed cooperative protocols, rituals and behavioral patterns and display many of the same characteristic expressions, cues, signals, and behaviors, as do other species, to manage both internal group tensions and conflicts and to organize protective defenses against external threats. (Darwin, Charles, The Expression of the Emotions in Man and Animal, 1889/1998) Animal ethnologists have noted many striking resemblances between animals and humans available for observation at any local dog park or on the street. A dog’s low growl is, for example, not unlike a human’s issuance of an ultimatum, saying in effect, “this far and no further–or else…” (Horowitz, Alexandra, Inside of a Dog, 2009) Similarly, most every species has protocols that allow defeated or weaker group members to retreat and survive. The Social Darwinist notion of the “survival of the fittest,” popularized by writers such as Ayn Rand, dubiously popularized an inaccurate understanding of Evolutionary Theory. While humans, and other species, can be brutal towards perceived enemies, but they have also frequently exhibited empathy for and tolerance for those less able to contribute. Those dominant in a culture have regularly allowed “lessors” some room to negotiate their existence. If humans are innately aggressive, they also have a cooperative instinct to moderate that aggression; war invariably begets the negotiation of a re-stabilizing “peace.” (Aureli, F., and De Waal, F.B.M., Natural Conflict Resolution, 2000; Wilson, E.O., On Human Nature, 1978: Wright, Robert, The Moral Animal, 1994)
For humans, an awareness of the natural history of negotiative behavior, rituals and approaches is important for three reasons. First, to become aware of the continuing relevance and evolutionary purpose of many traditional negotiation tactics and approaches that are otherwise prone to being dismissed as primitive and anachronistic. Second, studying this natural history offers an important alternative perspective on the multitude of styles and models of negotiation that have cropped up so as to hold in check the resulting orthodoxy of practice which can impair practice competency and effectiveness. Third, the history provides clues to understanding and neutralizing the still persistent and deeply ingrained ambivalence and resistance to negotiation.
Despite the Necessity, Most People Do Not Like to Negotiate: Sources of Ambivalence and Resistance
Despite the necessity to negotiate, and that it is a eminently sensible approach to settling differences, many people have an ingrained ambivalence toward and resistance to negotiation or mediation. While many profess to like the idea of cooperating in theory, they find the actual practice of compromise to be far more problematic. This ambivalence has shadowed the negotiative processes throughout history. The suspicion even extends to the motives of those who would recommend or suggest that they engage in negotiation. While many presume that anyone, given the option to settle a dispute by negotiation or mediation, would rationally choose to do so, that logic does not hold consistently. In fact, despite the unquestioned need for such services, few people negotiate or mediate easily or willingly. Many people, regardless of culture, continue to be gripped by a centuries old, deeply ingrained resistance to such negotiative processes, which frequently threatens, and sometimes trumps, reason, and can even overwhelm the instinct to collaborate. Conflict management practitioners cannot afford to minimize or dismiss the emotional depth of peoples’ historical ambivalence and resistance to negotiative processes in their understanding, marketing and practice approach.
There are Four Primary Sources of Resistance to Negotiation: Neurobiological, Cultural, Psychological, and Moral
Biologically, the human brain is not the neatly ordered computer like organ of popular imagination; in fact, that functioning is often a messy affair. When threatened by others or a difficult situation, negotiation is seldom people’s first choice and not considered until all other modes of conflict management have been exhausted, namely the “fight-flight” syndrome. Neuroscientists have confirmed there is a neurochemical release in the brain, triggered by a perceived threatening circumstance, to either withdraw and avoid the situation, or fight back. There is no neurochemical trigger to negotiate. Negotiation is typically a secondary response, which requires an effortful, conscious and intentional decision to engage the threat alternatively.
Psychologically, a person in conflict must overcome their initial impulse, or gut reaction, against dealing face-to-face with a person or persons with whom they are at odds. Depending on the extremity of the situation, those other people can very quickly become identified as not merely having different views, but as adversaries or enemies. While training and experience can help minimize such inclinations, few can avoid the feelings entirely. The effort necessary to overcome such initial reactions and consider a negotiated compromise often takes more time and effort than most people realize. Not even experienced negotiators and mediators are immune to this piece of “predictable human irrationality.” Especially in a culture dedicated to the belief in rationality, most people enter a dispute with a sense of being right in their view of the matter, justified in their position, and unwilling, if not loathe, to compromise. To do so, is akin to “giving in,” or worse, compromising the truth and “selling out” their principles. For many people, as cognitive psychologists have demonstrated, their self-assuredness is only matched by their over confidence. An example of this form of predictable irrationality is commonly apparent among both parties and lawyers in many legal controversies where each side will unabashedly predict victory and vindication. In accord with the prevailing myth of justice, each side will claim that any ostensibly independent and fair-minded third party, be it a judge or a jury, will render a determination in their favor. They often persist in making such predictions despite considerable evidence that demonstrates such confidence in the outcome is unpredictable and unjustified. The balance is precarious: from an evolutionary perspective, human irrational commitment, determination, and dedication to a belief has proven helpful to bring about the acceptance of many ideas, the propriety and logic of which were initially in question; at the same time, if commitment that lapses into stubborness and intransigence can lead to faulty judgments and poor decisions. (Kahneman, D. Thinking Fast and Slow, 2012)
In most controversies or conflicts the people and professionals involved— including the negotiators and mediators–will be faced with the challenge of managing their human, “predictably irrational” propensity to make “fundamental attribution errors” about those with whom they are engaged. It is hard to avoid casting those with whom one disagrees, whether in politics, disputes, or even intellectual discussions, as either naïve, illogical, mentally slow, unreasonable, or sometimes even evil. (Ross, L, and Ward, A., Naïve Realism, 1998) Being aware of the propensity does not appear to be a prophylactic and certainly does not cure it.
Finally, many people are psychologically reluctant to take the responsibility for their own decisions that negotiation or mediation require, and not uncommonly defer to experts. This is especially so in a complex technological society where people are often confused and overwhelmed, often unfamiliar and uneducated in even the basics of negotiation, and stressed by the conflict. All of this is exacerbated by the common pre-disposition of many to view negotiation as a risky venture and to hesitate to participate for fear they will be taken advantage of and played for a fools by a devious adversary. While almost every news broadcast includes reference to some matter being negotiated, most people have not been actively involved nor have much personal experience in negotiation. The nature of negotiation practice is diffuse and often undifferentiated from one’s philosophy of life. Although a critically important skill set, negotiation is not taught in schools and there are few courses for the general public, or for that matter, for professionals, and the “self help” literature is sketchy, and in any event, an inadequate substitute for thoughtful preparation. Most people have learned to negotiate, “by the seat of their pants” —a hit or miss proposition at best. As a result, especially in a techno-rational culture, where professional experts are thought to be imbued with special knowledge and authority, the default choice for many people in conflict, be it personal or business, is not just to consult with them, but to “be safe,” to follow their “advice”— or more accurately, their direction.
Culturally, especially in dominant cultures with a strong militaristic tradition, the willingness to negotiate is considered a sign of weakness. John Wayne, for example, not just a movie star, but an American cultural icon, would never negotiate. He, and the progeny of action stars that have followed him, embody the quintessential action figure many people — not just men — want to emulate. Action heros force or compel change; they have their own internal sense of justice and waste no time negotiating. Especially In the American Western film genre, the “bad guys” are the bureaucrats who want to negotiate, make deals and compromise. (Benjamin, R.D., “Reel Negotiation: The Good, The Bad, and The Ugly- Reflections of Negotiation and Mediation in Film,” Mediate.com, 2006) Most action dramas, be they television, film or video game, have a script that perpetuates the cultural Myths of Truth and Justice. This provides a steady “fast food” diet that reinforces the belief that for every problem there is a simple, correct, and right answer, which is discoverable, leaving little room for negotiation.
Negotiation is considered by many to be not just a sign of weakness, but an immoral and sinful act. Even if none of the people involved in a dispute are religious and the issue seems relatively minor—a dog barking case or property dispute—the matter still has a moral dimension. The description of a negotiated agreement as “doing a deal with the devil,” The metaphor associates and structures negotiation, at least partially, as an evil act. (Lakoff, George and Johnson, Mark, Metaphors We Live By, 1980) Elaine Pagels observes in her book, Adam, Eve, and the Serpent (1989), that in Christian theology Satan is the archetype of evil and his primary modus operandi is to tempt, deceive, persuade, and negotiate for human souls. Nowhere has the influence of this theology permeated more pervasively than in human negotiative behavior. (Benjamin, R.D., “Negotiation and Evil: Religious and Moral Resistance to Settlement,”1998)
With this framing of negotiation, it is easy to understand how many would assume the best defense against Satan’s seductions is to maintain a rigid and uncompromising position and refuse to negotiate on any matter where principle is involved— and there is a principle lurking in almost every dispute. The risk of crossing the line in a compromise, even if a sensible one, raises the specter of selling-out. While making a deal is for some indicative of pragmatic flexibility, for others, it is a sign of relativistic thinking, moral laxity and questionable character. The association of negotiation and sin is not infrequent or inconsequential. A father in a divorce case who has offered to pay more child support in return for more time with the children is often subject to being accused of immorally treating the children as property to be bought and sold. Likewise, in business matters, many refer to legal actions as intimidation, coercion or even “blackmail, ” which an especially common response to a party’s allegation of “sexual harassment” in a workplace matter.
The suspicion of negotiative processes often extends to questioning the character of anyone who would engage in, or suggest, the negotiation of a controversy. Neville Chamberlain, the British Prime Minister, was accused of appeasement because of his negotiation of the Munich Accord with German Chancellor Adolf Hitler in 1938, seeking to short circuit World War II.. Similarly, President John F. Kennedy’s character was questioned for his pursuit of a negotiation with then Soviet Premier Nikita Kruschev, instead of a first strike military action in the 1962 Cuban Missile Crisis. (Kennedy, Robert F., Thirteen Days, 1969; film Thirteen Days, 2000)
In the same fashion, while mediators and negotiators view their day-to-day work as a well-intended and noble effort to resolve conflict, they are frequently viewed far less favorably, not only by other professionals, but by the parties with whom they are working. For those unfamiliar or unsupportive of the negotiation or mediation, especially in complex matters, the often messy process that frequently requires hard to explain trade-offs to reach a settlement is particularly susceptible to second guessing and those who have served as handmaidens and helped facilitate the resulting deal are subject to severe criticism. In addition, regardless of how well informed a party might be prior to agreement, by nature, he or she is prone to suffer “buyer’s remorse.” They question their judgment in settling, and sometimes displace their anger and blame on the mediator, lawyer, or others who aided the negotiation process. Some go so far as to revise and reconstruct their memory of the agreement as one in which they were “coerced” to settle. Neuroscientists have confirmed how facile the human memory tends to be; reinterpretations of history are more the rule than the exception.
Lawyers, politicians, and diplomats have drawn a disproportionate share of scorn, not because they are less principled or ethical than doctors, clergy, counselors, or other professionals, but because their work requires more direct involvement in negotiating and making deals. As such, they have provided a good amount of fodder over the centuries for the ridicule of caricaturists like Daumier, the satire of Shakespeare and Voltaire, and punch lines for humorists and comedians from Aristophanes, Mark Twain, and Will Rogers to John Stewart and Stephen Colbert.
The ambivalence and suspicion of negotiative processes has been carried down through the centuries. Richard Dawkins, a noted evolutionary biologist, has suggested that negotiative behaviors, along with other cultural rituals and traditions and the disposition to practice them, are possibly transmitted from generation to generation by “memes” in a process analogous to the transmission of biological traits through genes. (Dawkins, R., The Selfish Gene, 1976) Clearly, some ethnic and cultural groups tend to be more disposed to negotiate than others.
The deeply ingrained historic resistance and ambivalence towards negotiative processes has contributed to the slow pace of acceptance and study of negotiative behavior to the present day. While altered somewhat by the considerable efforts in recent years to rehabilitate and remake negotiation and mediation as rational and sensible modes of settling disputes, that effort has not cured or even substantially dented the ambivalence. This is in some measure because the sources of resistance, or for that matter, basic negotiation skills, are still rarely taught or systematically studied. This failure to appreciate the depth and extent of depth of the resistance limits not only practice effectiveness, but the ability to successfully market and gain a wider public acceptance of negotiation and mediation services.
“Style Wars” and the Risks of Practice Orthodoxy
The awareness of the natural history of negotiative processes also offers a perspective with regard to the multiplicity of approaches, styles, strategies and techniques that are now practiced. Those differences, not surprisingly, have incited rivalries between practitioners, professional organizations, teachers and theorists and have encouraged practice orthodoxy. These “style wars” are largely traceable to the advent of the modern rationalist approach to negotiation, especially over the course of the last 30 years.
Roger Fisher and William Ury, two Harvard Professors, wrote Getting to Yes in 1981. As a reasonably short, accessible, coherent and internationally popular primer on what the authors term “principled” negotiation, it has become a bible of sorts. The underlying premise is that people are rational actors and that through discussion focused on their common and respective interests, they can cooperatively arrive at mutually satisfactory agreements. Those basic tenets have come to undergird most of present day professional training, teaching and academic curricula in conflict resolution.
Fisher and Ury, began the process of re-inventing negotiation by dressing the process in the familiar intellectual frame of reason and rational decision making theory and civil discourse. In doing so, negotiation and mediation practitioners could trade in their historic reputation for being deceptive and manipulative agents and present themselves instead as “neutral” and impartial problem solvers.
This modern re-shaping carries with it the active suggestion that reasoned negotiative modes are not only different, and a break from a past questionable practices, but also universal in application. Rationality, arguably, eclipses the boundaries of time, culture and circumstance, so that neither history nor culture are especially relevant to whether this approach to negotiation is applicable to solve a controversy. This modern rationalist form purports to be a “win-win” approach of expanding options and creative solutions. Fisher and Ury, therefore, make little mention of the history of negotiation, except to cast it as a jumble of outmoded tactics and unnecessary game playing. Those more primitive forms of the “hardball” power negotiation style, relied on tactics such as positional bargaining, the use of ultimatums, and deceptive or manipulative ploys, which Fisher and Ury considered misguided, dysfunctional, and sometimes unprincipled. As a win-lose contest between participants with limited options in a “zero-sum” game, harsh and competitive schemes are tacitly or directly encouraged. The rivalry between the new-form rationalist approach and the realpolitik approach of power negotiation remains fierce. Modern practitioners have acquired a strong antipathy toward what they view as competitive and unprincipled tactics, and in return, old style practitioners openly question their naiveté about the nature of conflicts in the real world. In evolutionary terms, however, the continued presence of both approaches suggests each may well have a current value, relevance and purpose.
There is an ongoing tension between the more traditional “hardball” power style of negotiation— and in mediation, a corresponding directive and evaluative style of practice—- and the more deliberative and facilitative, rationalist approach of recent years. In addition, many other offshoot styles of the rationalist approach have proliferated in recent years due to the attention mediation services have garnered from the formal legal system. In 1979, Harvard Professor, Robert Mnookin, described mediation as a form of “private ordering” between parties in an informal process that, while in the “shadow of the law,” effectively outside of that system. (Mnookin, Robert, “Bargaining in the Shadow of the Law,” Yale Law Journal, 1979) Now, 30 years later, to an extent never before seen in history, through legislation and court rule, that process has been insinuated and institutionalized in the legal landscape. The expansion of available markets for mediation services appears to have spurred the emergence of many different “brands” of mediation.
Each practice style claims to meet special needs and purposes that the espousing practitioners believe it unique and set it apart from the others. The current style forms that have emerged in recent years cluster around three poles of influence: the substantive dispute context of the matter, the practitioners’ professions of origin, or an ideological belief system.
The substantive dispute contexts that influence style can be as varied as the subject of the conflict. Divorce, family, juvenile, victim-offender, elder care, community, workplace, employment discrimination, construction, personal injury, mortgage foreclosure, damage claims, health care (‘medical malpractice”), foreclosure, special education, disability legislation compliance, environmental and sustainable development, and public policy matters, are only some of an ever increasing list of dispute contexts for which specialized styles have begun to be generated.
The practitioners’ professions or disciplines of origin often set habits of thinking and approach that influence their negotiation and mediation style include among others, law, counseling, business, religion, community development, urban planning, environmental management, or philosophy.
For many, the practice of conflict mediation and negotiation is a form of peacemaking. Practitioners are drawn out of a commitment to an ideological belief system that views conflict as an opportunity for relationship transformation, the pursuit of peace and social justice, or even the ultimate alteration of human nature fostered by a dedication of a deliberative process.
None of the style forms are wrong or misguided, and many are serviceable. However, to the extent a style has been adopted unwittingly, or out of habit, rather than by conscious choice, can often limit a practitioners’ effectiveness. Many negotiators and mediators have tended to take on a particular style because it appeared familiar and comfortable, rather than carefully scrutinizing their assumptions about the nature of conflict, how people make decisions, and the available strategies and techniques most effective in the presenting circumstances. Style is most heavily influenced by, among many others, a practitioner’s own personal experience, cultural and ethnic background, religion, professional training, and conventional wisdom and mythology. Specifically, the approach and style of negotiation and mediation practice in Western culture tends to assume people make decisions in a cost effective, reasonable and mature way. Every practitioner has many heuristic biases, or rules of thumb, some conscious and others not, that enter into their choice of style. Some of those biases are useful in certain circumstances, and others not at all or even counter productive and unhelpful. Few styles are effective all the time, even in the same substantive dispute context. Frequently, the teaching and training of negotiators and mediators reifies and promotes a particular style as the best or preferred and excludes or discourages the practice of strategies and techniques that are viewed as inconsistent with that model. For example, for a mediator to make a tactical decision to meet privately with the parties in caucus, should not be ruled by habit or style choice, but by the circumstances and an assessment of risks and advantages of the decision.
Not surprisingly, all of the prevalent present day styles and approaches to negotiation and mediation have antecedents in history. Whether drawn from an emphasis on the desire to be cooperative, the inclination to be competitive, the desire to be moral, or need to be pragmatic, each style of negotiation or mediation has a useful purpose but is not sufficient in and of itself. For practitioners, the risk is to allow their style of practice to become bound to particular context or for them to use the same style in all dispute contexts.
Lawyers and business people, for example, are prone to “rationally” view disputes as largely, “just a matter of money.” They assume the predominant source of conflict to be economic, or the scarce allocation of resources, be they time, money, or energy. The issues are likely to be framed in legal terms, based on an assessment of what a court might do, and subjected to a cost-benefit analysis. This style is less focused on the relationships of the people involved than on reasoned analysis and the use of logic and persuasion to reach an “objectively” based agreement. Their structuring of the process closely follows the familiar form of a case settlement conference common in legal proceedings. As well, whatever the origin of the dispute, the matter is likely to be transformed and framed primarily as a legal matter with legal issues predominant. In this process, each side presents an opening statement arguing their legal positions based on suppositions of what a court might consider and determine were the matter to be adjudicated. The respective parties are commonly separated from each other, with either their respective attorneys or a mediator going back and forth and meeting with each side separately in a “caucus” so as to minimize their need for personal contact. The working assumption is that personal interaction between parties in conflict will result in distracting altercations. (Menkel-Meadow, C., “The Transformation of Disputes By Lawyers: What the Dispute Paradigm Does and Does Not Tell Us,” Missouri Journal of Dispute Resolution, 1985)
Negotiation or mediation practiced by those practitioners with a counseling or mental health background, by contrast, veers toward viewing the source of conflict to be faulty communications between people and their failure to acknowledge or appreciate others interests and needs. There is a tendency to rely on the familiar strategies and techniques that emphasize face-to-face personal interaction between disputing parties in order to re-establish trust and communication between them. Whether done out of habit or by intention, this style often serves, intentionally or unwittingly, a competing therapeutic purpose.
Each of these styles reflect, alternatively, the weight and importance given to either the business and legal aspects, or the relational personal dynamics of the dispute, often at the expense of the other. Too firm an adherence to style can block from the practitioner’s view that a business dispute over a contract may be, at core, a personal dispute or conversely, that a family dispute is about differences concerning business or financial matters. The framing of a dispute as a legal or personal matter, along with the negotiation style preference used to manage the matter, are as much, or more, conditioned by the professional discipline, background and training of the practitioner. As a result, whether out of a sense of the need to protect professional territory and prestige, or a belief in their superior competency, lawyers presume greater ability to negotiate business and legal matters, while mental health professionals presume to have greater expertise in family and other relational disputes. This fragmentation of a dispute can often constrict consideration of alternative approaches to settlement and sometimes the success of the negotiation. Business disputes are seldom, if ever, just a matter of money, and family and personal conflicts are seldom just about relationships.
The choice of style is also influenced by marketing consideration. Many lawyers have taken to advertising or identifying themselves as “lawyer mediators,” or as “collaborative lawyers” in an effort to present themselves as more reasonable, humane and efficient. In recent years, many law schools have sought to encourage that trend by presenting courses in “legal mediation” and “mediation advocacy.” Correspondingly, many mediation practitioners whose profession of origin is in a mental health or communications profession advertise the therapeutic values of mediation. Courts and agencies refer matters to mediation practitioners less because of their negotiation and settlement skills, but based on their presumed substantive expertise and subject matter familiarity. “Attorney mediators” are commonly preferred to manage property and business issues, while counselor mediators, or non-attorneys, are chosen in family matters. This conventional piece-mealing of conflicts by label and the presumption that a particular style of negotiation or mediation is necessarily suited to a matter on that basis belies a limited understanding of negotiation or the mediation process. In so doing, there is a heightened risk that the core strength of negotiation will be lost. An effective agreement requires a systemic understanding of conflict and obligates taking account of all of the elements of a dispute including, the personal and emotional, business and financial, legal, and moral aspects of the matter. To do otherwise limits the range of strategies and tactics a practitioner might draw upon from the archive of negotiation practice developed through the centuries, regardless of context, culture. Strategies and techniques commonly used in business matters can be usefully applied in a family, workplace, or other matters, and there are more similarities between political and international negotiations between countries and a divorce, will dispute or family matter than there are dissimilarities.
The institutionalization of negotiation and mediation practice has also strongly influenced styles of practice. Courts, government agencies, school systems, universities, corporations, and cyber space businesses have, not surprisingly, found those conflict management modes far more efficient and flexible in moving disputes and cases through bureaucratic systems. However, the strengths and benefits of negotiative proceses can also be problematic and a weakness when incorporated into highly structured organizations. The processes must necessarily become more formalized and uniform in application; the role of the mediator, ombudsperson, or other third party, must be more tightly prescribed, and clear parameters pre-set for the range of acceptable agreements. The risk of the third party becoming, or being perceived to be, an agent of the organization remains a constant concern. These have been issues of concern in large scale damage claim matters, such as the program for the compensation of victims of the September 11, 2001t terrorist attack on the World Trade Center in New York City, Hurricane Katrina in New Orleans in 2005, the BP Gulf Oil Spill of 2010, and home mortgage foreclosure mediation programs around the country, as well as in the use of mediation in the administration of individula educational planning (IEP) in special education, and in many government agency regulatory negotiation processes. (Feinberg, Kenneth, What Is Life Worth, 2005; Benjamin, R.D., “’Mediation Is A Gamble’: A Sobering Review And Critique Of Mortgage Mediation Programs,” Nov. 2010)
The ideal of a third party having the range of motion to encourage creative thinking about the available options to settle disputes—“outside the box” ideas— and to have the flexibility to draw from a variety of negotiative styles, strategies and techniques, can be easily compromised or corrupted, even if unintentionally, by program policies and operating rules. The design of a dispute resolution system must include suffcient awareness of what is required for an effective negotiative process if the negotiative process is to remain effective. Mediators, ombudspersons, and other third parties have often become mere ministerial agents doing essentially giving details of possible pro-forma outcomes, or at the other extreme, pressed into being quasi-arbitrators, giving evaluations and recommendations on submitted claims.
The risk of practice style orthodoxy.
The advocates for each model or style of practice form tend to form interest groups that lobby for recognition, assert the need for special training and expertise, and seek to establishes a certification process, or even pursue licensure. Specialization is not a surprise from an evolutionary perspective, especially in the Western techno-rational culture where being recognized as a specialist has greater prestige and marketing value. (Adler, Peter, “Protean Negotiation: Rejecting Orthodoxy and Shifting Shapes, 2006) Specialization can further the competency of practitioners, but may limit flexibility. The orthodoxy some adherents profess or display for a particular style poses a risk to effective practice and public acceptance.
The study of natural history of negotiation provides an effective counter to stylistic orthodoxies and rivalries that threaten to interfere with creative practice and competency, but also give validity to strategies and tactics employed throughout history which are too often dismissed as anachronistic. If the primary purpose of human negotiative behavior is to provide a safety valve—a pragmatic and practical means of bridging differences in ideology, values and purposes between people—then negotiation and mediation practice must remain flexible in approach, informal and systemic in focus. This is all the more important in an increasingly complex and technical world, has been a systemic focus, flexibility and informality. For example, the use of ultimatums, or other heavy-handed negotiation tactics that have been used through the centuries and which are often deemed as inappropriate by many modern day practitioners, continue on occasion to serve a necessary purpose.
The human instinct to cooperate, to survive and thrive as a species, has fostered our active negotiative behavior for as long as we have been a distinct species. As hunters and gatherers, we had to cooperate about where and how to hunt and what to gather. Later, some estimated 4000 years ago, as the “productivities of farming gave rise to governments,” negotiation was most surely advanced. Jared Diamond, an eminent evolutionary biologist, has observed that in addition to climate and geography, one of the more important determining factors in the wealth of a country is the presence of ‘inclusive political and economic institutions.’ The level of inclusiveness is the extent to which the general population is allowed and encouraged to participate in decision-making, thereby fostering an incentive to work. This process is fundamentally dependent on people’s ability and willingness to negotiate. (Diamond, Jared, “What Makes Countries Rich or Poor?” New York Review of Books, June 7, 2012)
The Evolution of Negotiation and Mediation Approaches Through History
There have been five discernible approaches to negotiative behavior that have evolved in successive periods of human history. Each form, or approach, reflects characteristic behaviors and strategies to manage the nature of the conflicts they have had to manage. First, in early human history, with the constant wars, the primal negotiation approach was focused primarily on survival. The second form came about in the 16th century, during the Renaissance. The internecine wars between city-states and the expansion of trade required approaches to negotiation to became more conscious and strategic. In the 17th and 18th Century, the Scientific Revolution and Enlightenment fostered a rationalist approach to negotiation that carried through until the early 20th Century. In the current fourth period, since World War II in the mid 20th Century, in an increasingly complex technological world, the rationalist approach to negotiation and mediation have been institutionalized and refined. And, emerging is a fifth, post-modern approach to negotiation based on studies in neuroscience and cognitive psychology which have challenged the premises of rational decision-making and necessitate taking account of peoples’ “predictable irrationality” in their decision-making.
In each negotiation period, the purposes served, how people have viewed the process, their willingness to negotiate, and the predominant strategies and techniques developed and employed have been adaptations to the social, cultural, and political environment of the time. In the course of the evolution of negotiation behavior and rituals, negotiation and mediation practice has become an increasingly more conscious and intentional activity. Each approach has incorporated the strategies and techniques of the earlier forms and present day negotiations, regardless of dispute context, reflects strains and visible traces of many, if not all, of the prior forms of negotiation practiced in earlier centuries. Few strategies or tactics have become extinct and many so called primitive, or outmoded, tactics remain relevant or have been refined and adapted for current use.
1. Primal Negotiation
In early history, especially in the absence of any semblance of a central governing authority, warfare and mayhem between rival groups or tribes was common and largely unchecked. This was the “all against all” world Thomas Hobbes described in The Leviathan (1651). Negotiation, was very much in evidence, although rudimentary in form, not too many steps removed from the conflict management behaviors of other animal species used to end fights. Similar in purpose, the focus of this negotiation approach is to serve the human instinct to survive and every war or hostile action must be brought to an end if that is to happen. This primal form of negotiation is largely unschooled and more reliant on visceral instinct than a planned, overtly conscious activity.
Contrary to popular thinking, war and negotiation are not polar opposites, or necessarily, an either/or proposition. If not symbiotically related, they are complementary to each other. Throughout history, they have often been indistinguishable from each other; some people consider warfare as an extension of politics, or negotiation by other means, and alternatively, view negotiation as a form of warfare. The more severe the human aggression, the greater the need will be, at some point and in some manner, for a cooperative cessation of the hostility to re-stabilize the relationship, or just survive. Even vengeful blood feuds and protracted conflicts must end at some point. And, sidestepping the discussion of whether warfare is an innate human trait, there is no getting around the ongoing inevitability of conflict between people, some of which threaten to become violent.
The management of the prosecution of wars, their ending, and aftermath relations between the parties, has been a primary driver and significant contributor to the development of negotiative behavior over the centuries. As warfare became more complex, the formation of intricate, precariously balanced alliances to defeat a common enemy, the negotiation of peace treaties, and administration and occupation of conquered territories, required effective negotiation. If poorly negotiated, the seeds for future conflict would be sown. Historians generally agree that the dubious terms of the Treaty of Versailles, ending World War I in 1919, contributed to World War II two decades later. In the same way many advancements in medical treatment and health care have paradoxically arisen out of exigencies of caring for battlefield injuries and traumas, so too have many negotiation strategies and techniques developed from the urgency of ending wars.
The interplay between war and negotiation has been ongoing throughout history. One of the earliest recorded discussions is found in the writing of the Greek historian, Thucydides, who considered the benefits and risks of negotiation in the Melian Dialogues in his chronicle of the 30 year Peloponnesian War between the Spartans and Athenians. He described the Athenians choice to effectively massacre the Melians —a nominal group loosely aligned with the Spartans—instead of negotiating a truce. This was an early demonstration of the “shock and awe” tactic that has been used in warfare to the present day, which is designed to break the will of the enemy. (Kagan, Donald, The Peloponnesian War, 2003) Von Clausewitz, the 19th Century German military and political theorist and architect of realpolitik, succinctly and famously offered in his work, On War (1831), that “war is the continuation of politics by other means.” While discomforting to those who would draw a bright line between the barbarism of warfare and the assumed civility of negotiation, they are closer in practice and purpose than most people and practitioners recognize. Many warfare strategies and techniques have been incorporated into negotiation and mediation practice, and negotiation strategy is a regular part of warfare. (Benjamin, R.D., “The Guerrilla Mediator: The Use of Warfare Strategies in the Management of Conflict,” 1999)
Military generals have been some of the most committed practitioners and greatest contributors to the development of negotiation strategy. Perhaps they became such fierce proponents being so closely perched to the death and destruction of warfare and compelled to deal with survival moment to moment. U.S. President Dwight D. Eisenhower, formerly the Commander of the Allied Forces in World War II, which itself required masterful and considerable negotiation acumen amidst a minefield of politics among French, British, and American Generals, has retrospectively been accorded greater respect as an effective world leader. Although frequently criticized as too cautious and tentative, Eisenhower insisted on remaining open to negotiated settlements short of “victory” throughout the Cold War, where he was often strenuously pressed to resort to force. (Powers, Thomas, “He Got the Big Things Right,” NYRB, 35-38, April 26, 2012). Many years later, in the first decade of the 21st Century, General David Petraeus, similarly recognizes how the nature of war has been transformed; unlike the past, the “enemy” is not a readily identifiable uniformed army clearly distinguishable from the civilian population. In his career, based in part on the Viet Nam War experience, he formulated the use of strategies and approaches to neutralize insurgency actions in the recently ended Iraq War and continuing Afghanistan War, which rely heavily on negotiative and mediative strategies and techniques that would be familiar to any experienced mediator. (Petraeus, Gen. David H., The U.S. Army/Marine Corps Counterinsurgency Field Manual, 2007) It is important to point out, this new form of warfare, not unlike many complex negotiations, is filled with ambiguity and often “unsatisfying” especially to those who expect war to be a clarifying, determinative and final end to a conflict. Negotiation and war are alike; they are both messy and “success” of the operation is often difficult to measure. (Nagl, John A., “The Age of Unsatisfying Wars,” New York Times, June 7, 2012; Nagl John A. Learning to Eat Soup With a Knife, 2005; Van Creveld, Martin, The Transformation of War, 1991) All that has changed over time may be some shedding of the illusion that the management of difficult conflicts has ever been or is likely to be otherwise, regardless of the mode employed.
Conflict scenarios where survival is at stake occur in the present day, almost as often as they ever have and primal negotiation approaches, strategies and techniques remain necessary and relevant. Wars, hostile actions, hostage negotiations, and even piracy on the high seas, are but a few of the extreme circumstances where negotiation is employed at some point to resolve the crisis. While some think such situations are more the exception than the rule, aspects of such extremes can crop up in many matters which are otherwise viewed as unexceptional. The parties in a business matter, for example, can become intensely angry and threatening, with or without an apparent triggering incident; feeling betrayed and mistreated is the starting point of most disputes. Similarly, in a divorce, the summary and unilateral closing of bank accounts by a party, or the threat to “take custody” of the children can lead to a cascading of worst fears and the feeling that very survival is at stake. Whether those fears are real or imagined, people will commonly justify the use of any means necessary in their defense, including deception, subterfuge and other primal negotiation strategies and tactics, if they negotiate at all.
Another long standing primal negotiation strategy that can trace it’s origins to early human history is “don’t ask-don’t tell.” Minority groups living in dominant cultures, be they racial, ethnic, religious, of different sexual orientation, or merely an immigrant or foreigner, have always had to literally negotiate their survival and existence with the dominant community. DA-DT evolved as an informal and non-verbal negotiated arrangement where people deemed marginal were allowed to eke out a living by doing distasteful but necessary tasks or work while taking care to remain largely invisible. People of color, Jews, those who are LBGT, and most immigrant groups have all had to broker that deal to survive in the past, and for some, for their whole history. Many gay and lesbian entertainers or actors over the years, including Liberace or Rock Hudson, for example, escaped the condemnation of an otherwise homophobic American culture in the 1950’s and 60’s as long as they did not openly assert their sexual orientation. Similarly, DA-DT tactics allowed the Jews of Europe to survive for centuries by serving the dominant Christian culture as bankers, business people, and doctors, thought then to be unsavory work. They did, however have to live in Ghettos and endure the occasional pogrom or inquisition.
In the primal negotiation approach, because survival is the preoccupation of those concerned, the negotiative behaviors are more a matter of instinct and ritual than conscious and intentional actions and little or no attention is given to standards of practice or ethics. The negotiator’s or mediator’s primary focus is on presenting themselves as sufficiently authentic so as to elicit trust and credibility necessary from the other party or parties to support the continuation of the negotiation process. (Benjamin, R.D., “Terry Waite: A Study in Authenticity,” Mediate.com, 2002)
In most primal negotiation scenarios, there is a significant power balance differential between the parties. The victors of a war, at first glance, have all the power and little need to negotiate with the losers. At the same time, however, an opponent with little to lose can be dangerous, and the cost of killing everyone is high, both emotionally and financially. In addition, the cost of occupation and loss of resources from a conquered territory can be considerable. Therefore, notwithstanding the power balance differential and the not uncommon use of ultimatums and other coercive tactics that do not conform to the modern day rationalist notion of a “level playing field,” there is often some form of leverage available to the “loser.”
The difficult, or even horrendous, circumstances under which many people felt forced to negotiate in order to survive likely gave rise early on in history to a palpable dislike, and sometimes outright disgust, for the negotiation process. Historically, negotiation has been primarily a means for “losers” to adjust their circumstances just enough to go on living and seldom was it a pleasant experience. Certainly the modern day notion of a satisfactory, let alone “win/win,” outcome never came to mind. The negative association stuck and has continued on through the centuries. This is exacerbated by the common present day understanding of negotiation being predominantly of the primal form, where deception, coercion and other tricks are the norm. Donald Trump, and others of his ilk, who proudly claim to negotiate by intimidation, does not help to alleviate the public misapprehension of negotiation. At the same time, some primal negotiation tactics continue to serve an evolutionary purpose and continue to be useful in appropriate circumstances.
2. Strategic Negotiation
The active use of strategic thinking, conscious and intentional planning directed toward manipulating people and circumstances to bring about a desired outcome became a core element of negotiation in the course of the 16th Century Renaissance. This period was tumultuous with the Catholic Papacy instigating wars against many of the Italian city-states, while, at the same time, other foreign powers were also battling for influence and control. Political and military alliances shifted continuously. This time was also a period of burgeoning commerce and economic growth with the accompanying political intrigues which required people to develop a heightened awareness of the actions and motives of those around them and to assess who were potential allies and who were enemies. Success, and sometimes survival, depended on the ability to anticipate and counter deceptions, and alternatively, to be strategically deceptive for their own protection and advancement.
Shakespeare’s 1596/98 play, The Merchant of Venice, conveys an apt sense of the business twists and turns and the fierceness of negotiations during this period, centering on a loan deal gone bad between a wealthy Venetian merchant, from whom the Jewish money-lender Shylock seeks to collect his “pound of flesh” under the terms of the agreement. In this social and political climate, Nicolo Machiavelli wrote The Prince around 1512, which would become one of the most important texts relevant and apocryphal to the nature of negotiation practice to the present day. His writing offered a foundation for the discussion of leadership, decision-making, and the exercise of power in every century thereafter. The phrase most notably associated with Machiavelli is, “the ends justifies the means.” His name since then has alternatively been reviled as a cynical, opportunistic, political realist, willing to act without scruples, or as a civic humanist, merely seeking to teach people to recognize the deceptions behind good appearances in order to be on guard and prepared. This tension between reason and honesty on one hand, and the necessity for strategy, games and deceptions in politics, business, and life, remains as vital and relevant today as it was 500 years ago, and even frames the discussion of the role and ethical duties of negotiators and mediators in the present day.
Machiavelli’s work also contributed to the ambivalence many people had then and still have today about negotiation. During, this time, deal making would be alternatively viewed, on one hand as a multi-dimensional and complex art form, and, on the other hand as a sleazy back room affair. Notwithstanding the varying interpretations of Machiavelli’s motives and purposes, however, his treatise marks the historical point in time when conscious and intentional strategic planning became an important, if not essential, component of negotiative behavior and practice. Since then, serious negotiators and mediators have paid close attention to the study of the conflict terrain, including an assessment of possible alliances, sources of resistance, available resources, the surrounding politics of a dispute, and have formulated approaches to the parties and circumstances that might be most likely to bring about an agreement. While he wrote about political conflict and management, the discussion is directly relevant to every dispute context regardless of the substance matter.
Machiavelli is the effective progenitor of the strategic negotiation approach, bringing to the fore the necessary plotting and planning that must be done to bring to fruition even the most noble ideas or policies. This involves the necessary discussion of the intentional use of deception as a tactic: when is it appropriate and how much? While the use of too much deception can contaminate the proceedings and breed distrust, encouraging the consideration of different ideas often requires a theatrical presentation. Reason, logical persuasion are seldom enough. This remains a troublesome issue for many negotiation and mediation practitioners to this day. The “truth,” if there is one, is not only the first casualty of war, but also a casualty of negotiation and mediation. The quest for the truth of a matter in dispute is often incompatible with the pursuit for a pragmatic, interim workable agreement. While difficult for many to understand, negotiators must come to terms with the realization that the perfect and “right” solution to an issue cannot be allowed to become the enemy of an adequate one. Especially in Western culture, “the intellectual and moral traditions have been shaped by an explicit and consistent fear of deception.” Truth and certainty are valued and juxtaposed with deception and falsehoods which are aligned with evil. (Rue, Loyal, By the Grace of Guile: The Role of Deception in Natural History and Human Affairs, 1994; Benjamin, R.D., “Managing The Natural Energy of Conflict: Tricksters, Mediators and the Constructive Uses of Deception,” in Bringing Peace Into the Room, Bowling, D. and Hoffman, D. eds., 2004)
All animal species, including human beings, engage in forms of deception to survive and procreate. The more complex the society, the greater the need for deception—both the self-deception of ourselves and the deception of others. In fact, as Robert Trivers, a noted evolutionary psychologist observed, “to effectively deceive others, requires first deceiving ourselves.” (Trivers, Robert, The Folly of Fools: The Logic of Deceit and Self-Deception in Human Life, 2011) This is nowhere more apparent than in negotiation and mediation of a conflict where the parties’ differing narratives of the dispute must be script edited so as to integrate and acknowledge the often widely divergent and contradictory stories of each participant, while holding tenuously to some recognizable strand of reality. At the same time, for a mediator or negotiator to be overly manipulative or deceptive risks breaching the trust of the other party or participants and losing credibility. While recognizing there is no avoiding the necessity for the use of some deception, therefore, never use more than is necessary.
3. Early Modern Rationalist Negotiation
As a result of the Scientific Revolution of the 17th Century and the subsequent Enlightenment of the 18th Century, how people in the Western cultures viewed the world around them shifted dramatically. And, while this shift originated in the study of physical phenomena, it was rapidly extended to the study of politics, society, and therein, conflict. The quest for the truth, previously pursued by and through religious faith, was supplanted by a faith in reason, and now began to be pursued by and through rational thinking. Negotiative behavior and practice came to be viewed as a rational enterprise.
Rene’ Descartes, a French mathematician and philosopher, was one of the earliest purveyors of rationalism. His famous dictum, “cogito ergo sum,” “I think therefore I am,” emphasizes the importance and the superior value of objective knowledge, as opposed to the subjective knowing of how the world works. Within a hundred years, in 1687, Issac Newton would confirm this paradigm shift in his monograph, The Principia, providing mathematical formulas for the precise and predictable measure of principles of mechanics, gravitation and motion. In subsequent centuries, Newton’s formulations have led many to believe there are similar immutable laws of nature that extend beyond physical phenomena and apply to human behavior and interactions as well. All that remains is to discover those principles and apply them. To apply principles of reason to society would be the work of Voltaire and other philosophers of the Enlightenment.
The collective power of their work gave rise to the Myths of Truth and Rationality, which still undergird Western Culture to this day. As Isaiah Berlin, the noted 20th Century historian and philosopher observed, there are three premises, not necessarily true, but which are widely accepted as fundamental to the Western canon of thought: 1) for every problem or question, there is right and truthful answer; 2) that right answer is discoverable; and, 3) there is only one truth. (Berlin, I., ed. H. Hardy, The Crooked Timber of Humanity, 1998; Benjamin, R.D., “The Physics of Mediation: Reflections of Scientific Theory in Mediation Practice,” 1990) As myths, they are not lies per se, but rather, stories of significance people use to make sense of the world around them. Many came to believe that conflicts could easily be resolved by the power of reasoned thinking and discussion.
At roughly the same time during the 18th Century many of the European Nations began to emerge and moved through a rapid succession of alliances, wars, and treaties. Negotiative processes became bureaucratized in the form of diplomacy. In contrast to Machiavelli, a century earlier, Francois de Callieres, an envoy of Louis the XIV, wrote On the Manner of Negotiating With Princes, in 1716, effectively applying the thinking of the Enlightenment to negotiation practice. His reasoned approach stressed the importance of integrity and relationship in diplomatic affairs. Notwithstanding his aspirations for the more reasoned practice of negotiation, however, the primal and strategic negotiative forms necessarily remained. In fact, the rivalries, politics, and wars between emerging European nations, each vying for dominance, was a display of power negotiation. By the mid 19th Century, the compelling Prussian Chancellor, Otto von Bismarck, would be actively using Realpolitik tactics to coalesce the Prussian state. To the extent this form of political realism presumed to be a calculating, purely pragmatic, and rational approach to controlling events it was a product of the Enlightenment. And, at least not unwilling to appear humanistic and liberal—some would say deceptively— when such an appearance served the purpose of obtaining an objective.
Toward the end of the 19th Century into the early 20th Century, after the debacle of World War I, there were some efforts to apply reason to statecraft. President Woodrow Wilson sought to devise a League of Nations, albeit unsuccessfully, as a forum where nations could come and reason together as part of his pursuit make that war “the war to end all Wars.” In the same vein, 20 years later, in 1938, British Prime Minister Neville Chamberlain sought to negotiate the Munich Agreement—known by some as the Munich Betrayal—with German Chancellor Adolf Hitler, to head off World War II in pursuit of “peace in our time.” Both brought to bear the rationalist principles of Enlightenment believing the resolution of reason merely required the application of reason to resolve conflict. Wilson was rewarded for his efforts by being cast as a naïve ideologue, and Chamberlain’s name became synonymous with appeasement. <
Current day negotiative practice and teaching has drawn heavily from the culture of science and Enlightenment thinking. The belief in Rational Decision Making Theory remains prevalent; many practitioners still presume people to be rational actors who, if given the opportunity, will predictably make decisions out of their calculated self-interest. Many of the terms used to describe negotiation and mediation practitioners and practice are quasi scientific in origin. The mediator, for example, is referred to as a “neutral,” “impartial” and “objective” third party, and practitioners think of themselves as “analytical” “problem solvers.” The language is not necessarily inappropriate, but it is revealing of an effort to present and cloak negotiation and mediation practice under the mantle of being a rational and scientific endeavor.
The rationalist thinking frame has, without question, given negotiative processes a useful and powerful model of practice that has brought a good measure of legitimacy to the conflict management field—although the term “field” is used loosely, intending to describe those who actively try to manage conflict, rather than a clearly defined and distinct professional discipline. This same rationalist paradigm, however, has also been problematic for the acceptance of negotiation and mediation by the general public and many professionals. This is because being rational is not necessarily the same as being pragmatic and sensible. While it may be sensible to settle a dispute, the process used to negotiate and the resulting agreement may well defy reason and logic. Further, for many inveterate rationalists who believe there is a correct answer to a problem or a proper resolution for a complex issue, negotiation or mediation seems unnecessary, or worse, obligates an unjustified compromise and denial of facts. In short, participation in negotiation is viewed as a derogation of the truth.
4. Modern Techno-Rational Negotiation
In the mid 20th Century, after World War II in the wake of Hiroshima and Nagasaki under the threat of a nuclear World War III, the principles of the earlier rationalist negotiation approach were studied with renewed vigor and intensity. The classic film, Dr. Strangelove (1964), starring Peter Sellers as a deranged German scientist who accidentally-on-purpose starts a nuclear war, captured the mood of the time. The nuclear threat congealed into the geo-politics of the Cold War that pre-occupied much of the world as either players or pawns, between 1949 and 1989. There is no question but that it was fertile terrain for those interested in negotiative processes; people suddenly became serious about exploring alternatives.
Negotiation began to be approached as science. The process was effectively militarized and industrialized. Game theory and computer modeling were wed to the study of negotiation and warfare strategy. Academic and military think tanks, one of earliest of which was the Rand Corporation in 1948, were formed to study, among other things, war and negotiative strategies. They postulated the doctrine of Mutually Assured Destruction (MAD), perhaps the ultimate refinement of the primal negotiation tactic of the ultimatum. Those nations with nuclear arms clearly have the bargaining advantage against those who do not and are in a position of power better able to make demands and set terms for others. And, against others similarly armed, to counter any threat with equal force.
In this atmosphere, Howard Raiffa and Robert Axelrod, two of the most compelling early theorists in the conflict management field, began in earnest to examine the science of negotiation and used game theory to model the rational-choice paradigm. The Prisoners’ Dilemma exercise, which purports to demonstrate the proposition that people will predictably make a reasoned choice to cooperate rather than compete with one another, if given the opportunity, was developed in this period, and is still widely taught. (Raiffa, Howard, The Art and Science of Negotiation, 1982; Axelrod, Robert, The Evolution of Cooperation, 1984) It is important to note, however, some years later Axelrod observed the limits of modeling noting that people tend to be more adaptive rather than rational in their decision making. He concluded that, “(a)lthough people may try to be rational, they can rarely meet the requirements of information or foresight that rational models impose.” (Axelrod, Robert, The Complexity of Cooperation, 1997)
This post war attention to conflict management, negotiation and mediation, trickled down from the macro level of Cold War geo-politics to be applied to community conflicts in the wake of the civil unrest and civil rights movement of the 1960’s and into the early 1970’s. By the late 1970’s, these new negotiative approaches began to seep into the legal system in the management of divorce and family matters. By the late 1980’s and early 1990’s, mediation came to be increasingly used by the courts for business and commercial disputes. The courts, judges, lawyers, and academics were initially skeptical, and sometimes downright hostile, to alternative dispute resolution processes, and concerns persist in some quarters. The commonly expressed reservation is that more informal modes of dispute resolution would undermine and supplant the role of the legal system and compromise the rights of minorities, by creating a “second class” justice system. (Grillo,Trina, “The Mediation Alternative: Process Dangers for Women,” Yale Law Journal, 1991; Merry, Sally Engle, and Milner, Neal, eds., The Possibility of Popular Justice, 1995) Over the course of the last 20 years the legal landscape has changed significantly with mediation and negotiation being far more prominent in law school curricula and practice.
The second half of the 20th Century was socially, politically, and technologically, volatile and negotiative processes became more necessary than ever to manage the accompanying stresses. Internationally, the geo-politics of the Cold War seemed to be continuously threatening, while the domestic affairs of many countries were occupied by popular movements for civil rights. In the United States there was a dramatic shift from the staid Eisenhower years of the 1950’s into the “New Frontier” and “Great Society” of the Kennedy and Johnson era, all of which had a significant impact on family relationships, business relationships, and the workplace. During this relatively short time frame, in historical terms, there has been a veritable revolution in the nature of marriage and the family, and gender roles in families and in the workplace are more fluid than ever. (Coontz, Stephanie, The Way We Never Were, 2000, and The Way We Really Are, 1997)<
This laid the foundation for the popularization of negotiation. Harvard professors, Roger Fisher and William Ury, introduced the principled, interest-based model of negotiation in a book that has become the primer in the conflict management field, Getting to Yes (1981). Fisher’s background included the design of the negotiation process for U.S. President Jimmy Carter’s successful Camp David Accords, bringing about the historic peace treaty in the Middle East, between Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin in 1978. Fisher came from the diplomatic corps, having worked on the formulation of the Marshall Plan after World War II, and followed in the tradition of Woodrow Wilson and De Callieres, dedicated to the belief in civil discourse.
While a slim volume, however, Getting to Yes coherently packaged the same rationalist model of negotiation for use in any dispute context, from an international geo-political matter, to a business or divorce conflict. By so doing, they effectively re-invented the negotiative process, making it over into an intellectually honest and principled activity based on reason and rational choice. This cleansing, however, required the minimization of the history of negotiative processes and the distancing of their model from the traditional notions of negotiation that had grown up in earlier centuries. The pejorative reputation of negotiation as a manipulative, deceptive and dubious activity, had to be disavowed.
From Fisher’s rendering, the role of a negotiator or mediator is fashioned as one with the calm, dispassionate demeanor associated with an eminently reasonable person. The role of the negotiator, and even more so, a third party mediator, is to be an “objective, neutral and impartial” party—not unlike a judge, except that the mediator does not render judgments—, who methodically frames the conflict and “separates the people from the problem.” The emotion of the dispute, while acknowledged, is moderated and minimized as much as possible in favor of reasoned analysis and discussion to solve the problem at hand. For many, the confusion between the role of a mediator and a judge, or between arbitration and mediation, persists in part because the description of mediators as objective neutrals is so close akin to that of a judge or arbitrator. Nevertheless, for the first time in history, the formal practice of conflict management and mediation began to emerge as a distinct career Professional organizations began to form and actively promulgate standards of practice as is to be expected in a ‘techno-rational’ culture. Mediators and ombudspersons sought to be granted the mantle of technical experts in conflict management.
Drawing from the scientific tradition, represented themselves as neutral, objective, dispassionate professionals who were disciplined to stay “above the fray” with no interest in the dispute outcome. (Schon, D., The Reflective Practitioner, 1983; Benjamin, R.D., “The Risks of Neutrality: Reconsidering the Term and Concept,” Mediate.com, 1998) With this structuring of mediation and negotiation in the modern rationalist tradition, the formal practice became more respectable and acceptable as an acknowledged part of, and complement to, the legal system. In addition, mediation and negotiation, having become a rational enterprise seemingly susceptible to study and evaluation, could also be included in the academic curriculums of law and other allied disciplines.
Negotiative approaches to conflict have become so alluring that many practitioners and theorists now consider negotiative practice as an ideological belief system in its own right. For them, mediation and negotiation are not merely pragmatic means of managing conflicts, the processes are ends in themselves. Engaging conflict offers an opportunity, and negotiation a means, to transform personal relationships, the functioning of society and, quite possibly, human nature itself. And, in the social and political spheres, a reasoned civil dialogue is commonly advanced as an enlightened form of self-governance. It is the foundation of the deliberative democratic process whereby people can participate in a planning process for their own welfare and in the pursuit of social justice and peace in the world. (Elster, Jon, Deliberative Democracy, 1998; Forester, John, The Deliberative Practitioner, 2001) Similarly, the practice of “transformative” mediation is less directly about the resolving the particular conflict at hand, than it is an opportunity to change the nature of the interaction between the participants. The model focuses as much, or more, on the therapeutic purpose of the dialogue as it does on pragmatic management of the dispute. The outcome is of lesser importance than the resulting “empowerment and acknowledgement” that might be gained by each of the parties of the others involved. (Bush, R. and Folger, J., The Promise of Mediation, 1994) Sometimes there is a religious overtone. John Paul Lederach, a Mennonite, actively pursues peace building, and employs negotiative strategies to engage people in conflicts throughout the world in an attempt to transcend the cycle of violence and pursue peace-building. (Lederach, J.P., The Moral Imagination, 2005)
The structuring of the mediation process prepared it to become institutionalized and legitimated as a regular part of the legal landscape beginning in the divorce context in the mid 1970’s. With increased societal mobility there was an increase in the number of people seeking divorce and forced to confront an outdated, fragmented and formalistic legal system that was glaringly ill suited and cumbersome. Not surprisingly, this social phenomenon began in California, which was among the first in the country, and the world for that matter, to formally include marriage conciliation and mediation as court services. Shortly thereafter, a private market for divorce mediation emerged throughout the country, based on the work of O.J. Coogler, an Atlanta lawyer, who structured the mediation process so that it could be replicated and taught, together with the substantial contributions of John Haynes, a Professor at the School of Social Welfare at the State University of New York at Stony Brook. (Coogler, O.J., Structured Mediation in Divorce Settlement, 1978; and Haynes, J., Divorce Mediation, 1981). The structuring of the process allowed it to spread nationwide and abroad by the end of the 1980’s. This development of a mediation structure and format allowed the process to be applied and adapted beyond divorce and family matters to many other dispute contexts and the core of the model remains in use.
Since that time, the mediation process, in varying forms, has been institutionalized, made a part of the legal system, and actively used to remediate and compensate people injured by every variety of natural disaster and class action legal claim. Mediative processes have been used to settle class action claims, large scale property damage claims, requests for special educational services, and most recently, the resolution of home mortgage foreclosures in state mediation programs nationwide. As discussed above, the institutionalization of the mediation process, while clearly necessary, is not without valid concerns to the quality of the process.
The rationalist approach has provided negotiation and mediation practitioners with a powerful thinking frame that has significantly advanced conflict management practice. At the same time, in recent years especially, the sufficiency of the rationalist framing has been called into question. Studies in neuroscience and cognitive psychology have compelled a re-examination of the working assumption that people —especially in conflict situations—are rational actors. Evidence is mounting that the thinking of most people, including the professionals and mediators involved and trying to manage the matter, are “predictably irrational” in their decision-making and judgments.
5. Post-Modern “Rationally-Irrational” Negotiation
The present day conflicts and issues are more complex and level of antagonism between people more strident than at any time in recent memory for three reasons: 1.) many of those issues present “wicked problems” that “…are difficult or impossible to solve because of incomplete, contradictory, and changing requirements that are often difficult to recognize…” and often harbor unintended consequences; 2.) both the experts and people in general feel a loss of control; and 3.) people are more becoming more aware that reason and rational problem solving methodologies, as they have traditionally been applied, are insufficient. (Rittel, Horst, and Webber, Melvin, “Dilemmas in a General Theory of Planning,” 4 Policy Sciences 155-169, 1973; Wikepedia Overview; Kahneman, Daniel and Tversky, Amos, Choices, Values and Frames, 2000, The scarcity of resources, climate change, and faltering economies, are just some of the most apparent macro issues of this kind, but there are aspects of wicked problems in many community, healthcare and interpersonal disputes as well. (Tenner, Edward, Why Things Bite Back:Technology and the Revenge of Unintended Consequences, 1996, Taleb, Nassim N., Fooled By Randomness: The Hidden Role of Chance in Life and in the Markets, 2005; Berwick, Donald, Escape Fire: Designs For the Future of Healthcare, 2004) As with all issues, and especially complex ones, the level of stridency is made more intense by communication breakdowns. While the internet has dramatically increased the technology of communication, it has also become a source of miscommunication by the reductionist oversimplification and fragmentation of multi-variate issues. Before the advent of Chaos Theory, “Fuzzy Logic,” and Quantum Theory, as a culture we had allowed ourselves to believe that any issue could be solved by science and technology; there was comfort in the notion that the principles of certainty and predictably were intact. Since then, we have been collectively shaken by the realization that there are often multiple possibilities in outcome over which humans have limited control and about which there is frequently little agreement about how to proceed. In short, while Issac Newton offered precise formulas for the calculation of predictable and certain outcomes of observable events, like the rate of fall of an apple from a tree, the behavior of subatomic particles refuse to follow those laws of nature, once thought to be ironclad and certain. The complex issues of the present day tend to follow the more chaotic patterns of subatomic particles rather than falling apples. There is no precise formula available by which to solve wicked problems and, importantly, we cannot expect to necessarily think, or reason, our way out of such complex difficulties.
This social, political, and economic environment requires a different approach to negotiation and mediation. While negotiative processes are well suited to manage the complexity of these issues and allow for a more creative, flexible, and direct monitoring of decision making, the approach, strategies and techniques of negotiation and mediation will also have to shift and adapting to this new environment. The rationalist model, while still useful, is no longer sufficient for three reasons:
Neuroscientists, of course, did not study conflict per se, only how the human brain appeared to function when presented with emotional circumstances such as the stress of conflict. For their part, conflict management practitioners have only begun to apply some of the understandings resulting from neurobiology and cognitive psychology to practice in the last 5 years. The predilection for the rationalist approach remains strong and there continues to be a resistance to accepting the inextricable connection and integration of the cognitive and subjective functioning of the human brain. Emotionally-based processes have always been suspect in a Western culture dedicated to reason and rational thinking and such studies traditionally been relegated to the province of moral philosophy, which would become the discipline of psychology only toward the end of the 19th Century.
In the early 1970’s, however, with the technological development of actual brain imaging techniques, such as Magnetic Resonance Imaging (MRI), and later the Function Magnetic Resonance Imaging, which records the brain in operation, neuroscientists were able to produce high quality images of localized brain activity in direct response to stimuli. Their ability to study not just the functioning of the human brain in general, but the emotional processes in particular, was enhanced significantly. Prior to this time, as Joseph LeDoux, a noted neuroscientist observed, emotions were viewed as “… just too complex to track down in the brain.” Up until then, the focus of inquiry had been essentially limited to the cognitive processes. This bought about the admittedly late “recognition that the mind is more than cognition…,” and the realization that subjective states of awareness also had to be, and could be, objectively studied if cognition is to be properly understood. (LeDoux, J., The Emotional Brain,1996; Purves, et al, Principles of Cognitive Neuroscience, 2008)
One such neuroscientist of note is Antonio Damasio. From his considerable research, he concluded that there is no such thing as the “cool headed reasoner” of myth and lore. The human brain is not neatly divided into different parts, one being the analytic and rational, and the other being the creative, emotional, and intuitive. (Damasio, Antonio, Descartes’ Error: Emotion, Reason, and the Human Brain, 1994) No decision is purely objective. There is always an inextricable emotional component to the functioning of the human brain. There have been strong suspicions of this close and continuous interplay of reason and emotion over the centuries. In the 17th Century, although cast as rationalist philosopher, Baruch Spinoza, challenged the Cartesian mind-body dualism that gave a higher order status to the human rational mind over the affective bodily senses and many philosophers and psychologists have since argued for a more holistic view. However, it has taken until effectively the present day for studies in neuroscience to confirm those suspicions. (Damasio, Antonio, Looking For Spinoza: Joy, Sorrow, and the Feeling Brain, 2003) This forces a re-thinking of the concept of rationality, which can no longer be narrowly limited to assertions that are provable, measureable, and objective. The definition of rational will need to be expanded to include irrational thinking. Sometimes irrational acts are, in fact, appropriate and rational and being too rational in certain circumstances can be irrational. This is nowhere more evident than in the practice negotiation and mediation.
Complementing the neuro-scientific work, cognitive psychologists have challenged the rational model of human judgment and decision-making. Daniel Kahneman, a Nobel Laureate in Economics, and his principal collaborator, Amos Tversky, along with others since, have demonstrated the numerous heuristic biases, or shorthand “rules of thumb,” people typically use in their day-to-day decisions. Not just sometimes, but regularly, they are as likely to be as wrong as they are right. Such judgments, in effect, are “predictably irrational.” No one escapes this inbred condition of brain functioning, not even scientists, lawyers, doctors or mediators, notwithstanding their professed claims and promise to be neutral, impartial and objective. Every one of us operates with a selective and imperfect memory, tends to be unjustifiably overconfident in our abilities and our truth of our beliefs, and tend to overlook our misperceptions. This reliance on intuitive judgments, while easier, frequently causes people to make systematic errors in judgment and prediction. (Kahneman, Daniel, Thinking Fast and Slow, 2011)
While not directly addressing negotiative behavior in Thinking Fast and Slow, Kahneman offers an especially useful and realistic frame from which to understand how negotiation and mediation should be approached. Not only does it compel negotiators and mediators to reflect on their own working assumptions, such as their presumption of neutrality, but it also provides an important frame for understanding the decision making process of people in conflict. Appreciating the ongoing interplay and tension in decision-making between peoples’ intuitive, shorthand ways of thinking and their more ‘effortful’ and analytical thinking frames, allows for the emergence of a new Post Modern approach to negotiative behavior. Kahneman’s Thinking Fast and Slow does not presume that being aware of the built-in “predictable irrationality” that is part of human decision making can be remedied, altered and so as to make people more rational, but that being mindful that is is a significant part of our thinking can be anticipated, sometimes countered, or even used to advantage, and possibly somewhat neutralized. At the very least, Kahneman offers an alternative platform from which to engage conflict that does not rely entirely on the use of reason, logic and persuasion and the presumptions of Rational Decision Making Theory.
Most people in a dispute, not wanting to lose face and often feeling threatened are prone to spin the story to their advantage, or even outright lie. They will posture theatrically, making demands and issuing ultimatums that border on irrational. Such games are commonly discounted and dismissed as irrelevant. They may, however, have some value and, from an evolutionary perspective, some relevant purpose. Entertaining that behavior, in a managed way, may allow a workable agreement to emerge more quickly. Being too quick to move to what appears to be a logical and workable agreement, based on what appears rational and reasonable, may be counter-productive. Given that the primary purpose of negotiation is to reach an agreement, being too focused on being rational would be irrational. Reason and logic, although they are the most common techniques suggested and taught to counter “irrational” thinking, are some of the least effective. Most experienced mediators and negotiators have concocted their own secret tricks that use forms of “crazy wisdom.” Through the centuries, many non-traditional, counter-intuitive, and sometimes non-rational tactics for nudging people towards agreement when reason fails, have been developed. Such tactics and strategies should not be lost because they do not neatly fit into an approved style or model of practice.
Much of the structuring, and many of the strategies and techniques of the rationalist approach to negotiation and mediation are slowly being reconsidered in light of neuroscience and cognitive psychology. For example, following the familiar legal structure, many mediations begin with each party presenting an opening statements of their position. While this follows the rationalist approach, this model encourages posturing and tends to solidify the parties in their positions. The result is a “rational” tactic that leads away from agreement and is, therefore, effectively irrational. The post-modern approach offers a more calculated technique for managing the discussion that does not force the parties into a pre-set rigid structure.
Likewise, the paradoxical injunction is a non-linear communication device. Instead of directly challenging a party’s logic for a position or action, a negotiator or mediator might authentically agree with their decision and encourage them to proceed to do what they say they want to do. This can often release the party from the need to take the action they claim is necessary. For example, suggesting to someone resistant to negotiation that they may well be right and that this process may not be well suited for them to resolve a dispute can allow them to mediate. By contrast, rationally explaining the benefits of the process often elicits a rebuttal and serves to reinforce their resistance.
Traditionally, in the rationalist frame, impasse is not good and to be avoided. Turning that working assumption on it’s head, a rationally irrational mediator approaches, and sometimes might even encourage impasse; an impasse can offer a creative opportunity for problem solving. Neuroscience suggests that after the frustration of an impasse, people tend to relax allowing other options to come to mind. (Benjamin, R.D., “The Joy of Impasse: The Neuroscience of Insight and Creative Problem Solving,” 2009)
The understanding of negotiative behavior is being stymied by a lack of awareness of the evolution of those behaviors and their natural history. Assuming the practice of negotiation has effectively begun in the last 50 years seriously compromises the dynamic development of negotiation that has preceded practice in the present day, and continues to directly influence that practice. The way people negotiate and mediate conflicts reflects strategies and techniques that have been cultivated over many centuries. Too often, past tactics are simply dismissed as primitive and outmoded, and yet they continue to be displayed with regularity. Their ongoing use suggests a continued evolutionary purpose and relevance. Few strategies and techniques have gone extinct just because a new practice style or approach has been announced.
There is no way to be proficient as a practitioner without being mindful of the sweep of history and past negotiation strategies and techniques. Being aware of how negotiation approaches and strategies might plausibly be associated with certain historical periods, social, political, economic and scientific developments, conveys the dynamism of an evolutionary process that impacts present day practice. The study of the natural history confirms that negotiation will almost always include an element of survival and the fear and ambivalence of being played for a fool. It is not an easy process to engage. Negotiation, done well, also requires strategic thinking, a measure of deception and the necessity of game playing.
And, finally, there is no minimizing the importance of carefully assessment and analysis of the conflict terrain and methodical consideration of available options. Future negotiators and mediators will also be obligated to learn how to anticipate and take into account their own and other parties’ heuristic biases and “predictable irrationalities.” This emerging post modern approach to negotiation has the potential to integrate the strengths of all of the previous negotiative forms and approaches into a more systemic conceptual framework that is more realistically suited to deal with the complexity of modern day conflicts.
This article will briefly outline the traditional role of the mental health provider prior to the client’s involvement in legal proceedings, and will then address the provider’s varying roles in...By Rachel Virk
Review Part 1 here. The Mediator and the Cost All who work in the field of child protection pay a price for their engagement and their compassion. Child abuse and...By Leonard Edwards