Assisted Negotiation: Facilitation, Mediation, Arbitration and Neutrality

1. Forms of Assisted Negotiation RD300 12 November 2001

2. Types of Assisted Negotiation • Facilitation • Mediation • Non-binding Arbitration • “Ideally, the disputing parties should retain as much control as possible over the dispute resolution process.”

3. When is assistance needed? • Unassisted negotiation has failed. • The conflict is complex (sometimes). There may be resistance to use of an intermediary due to: • Perceived appearance of weakness. • Perceived loss of control over outcomes. • Neutrality and competence of proposed helper.

4. How to judge an intermediary’s competence • Four criteria: • Background; • Affiliation; • Record; and • Reputation Intermediaries should be impartial.

5. An Intermediary’s Roles and Functions • Getting started: • Building confidence among stakeholders/parties that approach can work. • Identify neutral venue for first meeting. • Logistical arrangements. • Draft meeting protocols. • Assist in selection of stakeholders and spokespersons.

6. Roles and Functions (cont.) • Managing the process. • Link to the media (??????) • Assist in agenda setting. • Identification of potential technical experts acceptable to all. • Summarizing/packaging data, issues & options. • Assist in identifying options.

7. Roles and Functions (cont.) • Preparing draft written agreement (single-text procedure). • Invention of enforcement mechanisms. • Ratification with constituents. • Monitoring implementation of agreement. • Renegotiations if needed.

8. Key Comments • “Intermediaries have to be careful not to become too closely identified with particular options or proposals”. • Issues of neutrality and trust. • Sometimes a team of intermediaries is needed. Process + technical neutrals.

9. Facilitation • Focuses almost entirely on process. • Monitor the quality of dialogue. • Emphasis is on communication. • Seeks to create and foster an environment conducive to joint problem solving. • Improvises as required by the situation.

10. Facilitation (cont.) • All parties must agree as to the suitability of the particular facilitator. • Each party can fire the facilitator. • Helps keep the parties on a useful course.

11. Mediation • Intensifies the substantive involvement of the intermediary. • Greater degree of confidential interaction with the parties. • May launch ‘trial balloons’. • Help parties out of a zero-sum mindset.

12. Mediation (cont.) • “…. the mediator must submerge his/her sense of what is ‘best’, and focus instead on the disputing parties’ own measures of success.” • Must avoid “steering” negotiations in the direction of past successful solutions.

13. Mediation (cont.) • The perceived fairness of the negotiated outcome is as much the mediator’s responsibility as it is the parties’. • The proposed settlement should not be exploitative or unworkable. • It is not the mediator’s role to represent specific interests who may not be representing themselves effectively.

14. Mediation (cont.) • The mediator must be acceptable to all parties in the negotiation. • May fill many of the roles of a facilitator. • Mediations may take days or years.

15. Comments on Negotiation • A “group mentality” often emerges as negotiations proceed. • May pressure an individual to change his/her mind. • Parties may not check back with their constituents. • In ‘all-gain’ or ‘win-win’ negotiated outcomes, nobody is worse off but they are not equally better off.