The Psychology Behind Mediation

Welcome to the bi-weekly Core Psychology series! Throughout the year, I’ll be presenting psychological research and relating it to aspects of the mediation process. The aim will be to isolate and examine some of the psychological processes that occur during mediation that either promote or undermine effective communication and achieving a settlement agreement.

In subsequent posts this series will analyze specific acts that may occur during mediation, but first I will highlight outcome interdependence and metacognition, two concepts that will be frequently mentioned throughout the year.

Outcome Interdependence

The purpose of mediation is to facilitate voluntary signing of a settlement agreement. This may be impacted by outcome interdependence, which is the compatibility or incompatibility between the parties’ interests and goals. ¹ It is possible that parties willing to undergo mediation possess a heightened level of compatibility, demonstrated by their willingness to try different forms of alternative dispute resolution; however, on the whole it seems parties engaged in negotiation are typically self-serving and fail to detect win-win solutions, opting instead for suboptimal solutions. ² We’ll look to the mediation process itself, and the perspectives and actions of the parties to determine what may promote interdependent or self serving behaviours.


Metacognition


The mediator’s effectiveness in their role will be a frequent topic in the series. If you saw the first blog submission of the year, you’ll remember the common mistakes committed by professional negotiators as outlined by Professor Wade (failure to listen effectively, being unclear in their own interests, bringing the wrong people to negotiation and staying on difficult questions for too long). The ability to avoid these common mistakes will depend on the mediator’s own metacognition. 


Metacognition is defined as “knowledge about how the mind thinks and the ability to control and reflect on one’s own thought processes.” ³ With such knowledge, negotiators can develop strategies for altering their thought processes, biases and perspectives to avoid making the same mistakes over and over again. For example, instead of setting time limits for discussing certain “difficult” questions, understanding why we tend to ineffectively persist may naturally lead us to change our behaviours as we realize our motivations do not coincide with the outcome of our actions.


The majority of the sources will be from the PsycInfo database. If you are a student or staff member at the University of British Columbia, you can take a look at: http://resources.library.ubc.ca/159/


Thank you for reading, and I hope you're looking forward to reading our next post!


Full citations:

¹ Halevy, N., Chou, E. Y., & Murnighan, J. K. (2011, September 12). Mind Games: The Mental Representation of Conflict. Journal of Personality and Social Psychology. Advance online publication. doi: 10.1037/a0025389

² Trotschel, R., Loschelder, D. D., Huffmeier, J., & Schwartz, K. (2011). Perspective Taking as a Means to Overcome Motivational Barriers in Negotiation When Putting Oneself Into the Opponent’s Shoes Helps to Walk Toward Agreements. Journal of Personality and Social Psychology, 101(4), 771-790.

³ Boyd, D., Bee, H., & Johnson P. (2009). Lifespan Development (3^rd ed.). Toronto, Ontario: Pearson Education Canada.

Negotiation Tactics from Down Under

With the new school year under way at the University of British-Columbia, CORE is up and running again! We have a fresh set of student bloggers who will be bringing you weekly updates with stimulating thoughts on the world of alternative dispute resolution.

Recently the Faculty of Law was privileged to host a full day seminar on the art of negotiation run by Professor John Wage. Professor Wade has authored over 100 articles and books and has taught over 300 mediation and negotiation courses around the world. Currently, Professor Wade is the director of the dispute Resolution Centre within bond University's Faculty of Law.

The session was designed to provide an introductory lecture for students to learn the nuances of negotiation. Professor Wade described positional bargaining (primarily quantifiable solutions) and interests based (underlying goals behind the mediation) as the archetypical approaches to negotiation, but stressed that both types should be used in concert to facilitate a successful resolution. Students were also introduced to BATNA (best alternative to negotiated agreement), WATNA (worst alternative to negotiated agreement) and the MLATNA (most likely alternative to negotiated agreement) in order to accurately frame the issue at hand.

In addition to lecturing on the theory behind successful negotiations, Professor Wade also presented some of the common mistakes committed by professional negotiators. Here are some of the most interesting:

1. Seeing the Elephant in the room: 

Failing to listen effectively 

Professor Wade stressed that one of the most common mistakes committed by lawyers when negotiating is a failure to listen. It is important to understand what the objectives of a client are in negotiation and to allow them to participate in the process. Often the greatest progress is made when the parties are able to speak candidly with one another.

2. Know what you want: 

Being Unclear in client’s interests and BATNA

This stems from the previous mistake, as a failure to accurately frame the heart of the issue will lead to ineffective negotiation. It is important that negotiators clearly state their position and disclose helpful information to the other party, particularly information that strengthens your position.

3. Know who to invite to the party:

Bringing the wrong people to the negotiation

People can generally be grouped into different conflict management styles based on their inherent temperament. Having too many people in the room with similar characteristics can lead to undesirable difficulties, avoidance of issues, inequitable solutions.  Therefore, given the circumstances of the situation, it is important to have a number of people or an individual at the negotiating table that is capable of shifting between mindsets (compromising, obliging, integrating, avoiding, or dominant).

4. Playing in the Mud: 

Staying on difficult questions for too long, instead of moving on to other questions

When a difficult issue presents itself it may be necessary to, “park it” and move onto another area of disagreement. Rarely in the course of negotiation will it be useful to continue on an issue that becomes seemingly intractable. Moving to another issue may help to mitigate some of the difficulties and challenges presented by the previous dilemma. It is important to emphasize areas of agreement to instill positive sentiment and to make parties feel closer to a solution.


If you have additional questions for Professor Wade feel free to contact him through Dispute Resolution Centre at Bond University drc@bond.edu.au. Keep your eyes out for future blog posts!

Mediation from Coast to Coast… to far away coast!

*Simone Tielesh is a CoRe student board member who is on an exchange semester as a visiting student at Dalhousie University’s Schulich School of Law.

A few weeks ago I sat down with Professor Diana Ginn to speak with her about a great initiative that has been going on at Dalhousie University. In 2004 the Canadian International Development Agency (CIDA) agreed to fund a five year project between Dalhousie, and partner universities in the Philippines and Vietnam. The project was called Principles In Practice (PIP) – and is focused on a principled approach to coastal zone management.

All three countries have large coastal areas, and wanted to share insights about regulation and management options. The program started with an environmental and regulatory focus, but partners in the Philippines and Vietnam requested that an ADR component be added. Professor Ginn, and her colleague Professor David Blaikie joined the PIP team to bring expertise on ADR methods in North America.

Professors Ginn and Blaikie, worked with the PIP partner professors to identify goals and found there to be a lack of ADR resources available in these regions. Their work then focused on training the trainers through providing techniques for teaching ADR, the theory of conflict management (focusing on hypotheticals which were culturally relevant), and lecturing on conflict management.

CIDA funding ended in 2009, but the three PIP partners were left feeling that strong relationships had developed and more work could be done. Since then, Professors Ginn and Blaikie have worked to keep these connections strong, and with a grant from the Schulich Fund, will be going back this summer to teach more conflict management classes, aid in drafting a national policy for Vietnam on coastal zone management, and collaborate with professors from PIP partners in Vietnam and the Philippines on a book on conflict management in Southeast Asia.

There is a huge appetite for resources and teaching on North American approaches to conflict management in the partner institutions – but the learning has gone both ways! Professor Ginn came away with five take away lessons from her ADR experiences abroad.

-         First, we shouldn’t assume that there is one typically “Asian” way to negotiate or mediate, given the differences in culture and history between each Asian nation.

-         Second, the idea of ADR being ‘alternative’ to enforcement of rights in court does not necessarily apply where there is a lack of law and regulation (and so a lack of court protection), conflict management may be the only avenue to dispute resolution.

-         Third, in Canada we often think of ADR as between two individuals/corporations engaging in an individualized process. Generally, but specifically in terms of resource management, the disputes could be between community groups (ie. traditional fisheries and aquaculture) or between a community or individual on one side and the government on the other, rather than simply between individuals.

-         Fourth, the most frequent questioned asked by PIP partners was, do any of these principles work when there is an imbalance of bargaining power?? This is an issue we also grapple with in the Canadian context, but is exacerbated when neither the law, nor the money is available to balance the negotiation/mediation table.

-         Lastly, the political realities in both Vietnam and the Philippines, which have very centralized government with significant control, affect public and private dispute resolution and can imbalance the negotiation table.

One lesson was definitive, these countries were eager to learn North American approaches (like interest based negotiation and mediation) to ADR, and given the increasing levels contact between boarders and around the world – this field is going to grow, it’s just a matter of in what direction.

Mediation from Coast to Coast

*Simone Tielesh is a CoRe student board member who is on an exchange semester as a visiting student at Dalhousie University’s Schulich School of Law.

Hello CoRe blog enthusiasts!

The Schulich school of Law at Dalhousie University has two great mediation initiatives on the Halifax campus and some fascinating partnerships abroad. Within the law school there is a much sought after alternative dispute resolution (ADR) course, which considers the theory and practice of dispute resolution techniques in the fields of negotiation, mediation and arbitration.

Also, the Dalhousie College of Continuing Education has a ‘Negotiation and Conflict Management Program” for both students and interested community members alike. This program offers intensive several day courses, at both basic and advanced levels, which use methods such as roll play in front of coaches to develop participant’s ADR skills. Check out the Negotiation and Conflict Management Program website for more details, at:

http://collegeofcontinuinged.dal.ca/Continuing%20Management%20Education/Negotiation%20and%20Conflict%20Management/

If you are interested in traveling, living or working in Atlantic Canada, or just looking for some additional information on ADR programs locally and internationally, the Negotiation and Conflict Management Program offers some great resources:

Association for Conflict Resolution (U.S./International)
ADR Institute of Canada
ADR Atlantic
Family Mediation Canada
Program on Negotiation (Harvard Law School)
Public Conversations Project
Public Disputes Program (MIT-Harvard)
BothAnd Project
The Third Side
Beyond Intractability
Settle It Now Negotiation Blog
The Mediation Channel
The Peacemakers Trust
 see:
http://collegeofcontinuinged.dal.ca/Continuing%20Management%20Education/Negotiation%20and%20Conflict%20Management/Resources.php

Check back in a few days for a great story about how two professors from Dalhousie Law are working with practitioners in Vietnam and the Philippines in the field of conflict management!

Looking for more exciting ways to be involved in mediation?

Mediators Beyond Borders (Partnering for Peace & Reconciliation) is a “non-profit, humanitarian organization of skilled volunteer conflict resolution professionals established to partner with communities in troubled locations worldwide to support them to build their conflict resolution capacity for preventing, managing, resolving and healing from conflict.” Current mediation projects are taking place in Liberia, Pittsburgh, Pennsylvania, USA, New Orleans, Louisiana, USA, Israel and The Middle East, Zimbabwe, Colombia, and Ecuador.

Check out their website at: http://www.mediatorsbeyondborders.org/ for more information on global mediation opportunities, join up as a member, or think about joining in on the Mediators Beyond Boarders Annual Congress.

The 4th Annual MBB Congress themed From Conflict to Peace: The Mediation Revolution will be held at UCLA in Los Angeles March 4-6, 2011.

http://www.mediatorsbeyondborders.org/what/congress.shtml

Mediators Beyond Boarders can also be accessed through their LinkedIn account at: http://www.linkedin.com/groups?mostPopular=&gid=2539171&trk=myg_ugrp_ovr  

The CoRe Challenge Announced!

CoRe will be welcoming teams of conflict resolution practitioners, mediators, lawyers, business professionals and students to a winner-takes-all game on Saturday June 4^th. The CoRe Challenge is inspired by the Amazing Race TV Show, but fear not – the challenges will reflect CoRe's focus on dispute resolution by testing each team’s ability to problem-solve instead of their ability to ingest odd foods. If you think you have what it takes to take home the big prize, register now! The winner will be announced later this spring at the CoRe Challenge Gala – more details on that event to come.

Each registering team of 4 is asked to raise a minimum donation of $500. Proceeds go to the CoRe Conflict Resolution Society, a registered charity that provides low cost mediation services to the community, as well as education and experience in dispute resolution for law students. You can find out more about CoRe and the CoRe Challenge on our website: www.coreclinic.ca

The deadline to register is May 15^th. To register, contact us at coreclinic1@gmail.com. If you don’t have a team of your own, we will gladly find one for you to join.

Agency in mediation

I am interested in mediation for several reasons, including the relevance of mediation skills beyond the obvious contexts of negotiation and mediation; the overloading of our court system and the need for lawyers (and law students!) to be part of the solution; and the strong potential of mediation to provide a more satisfying and societally healthy kind of resolution than that provided by the courts.  It also seems to provide much more room for personal agency.  In my first few months of law school, it is already becoming clear that the court system, while often helpful, is limited in some important ways.

As part of my graduate studies, I researched a dispute over land ownership.  One of the biggest problems hindering resolution of the dispute was a lack of common ground (excuse the pun).  The parties often talked past each other:  Each claimed the moral high ground; each pointed to the other's failures to adhere to the law; each felt that the other's goals were unfair, unreasonable and unrealistic.  The parties had chosen to try to resolve thier dispute face to face, though.  Although the situation is not yet resolved, I hold out much more hope for resolution outside of the court system than I do for success through litigation.  This is primarily because I believe that our court system is premised on ideas of justice that favour the status quo, meaning that there is a bias against weaker parties.  Legal norms and assumptions often preclude different ways of understanding a situation, and the courts' notions of justice are often narrow and inflexible.  Although the courts might be able to wade through the complicated dispute and would no doubt reach a verdict, I wonder whether it would leave the disputers with any useful sense of closure or satisfaction.

While the hope of a winner-takes-all solution may be appealing to people on both sides of a dispute, each believing their own point of view is the correct one, the world is not black and white.  Complexity needs to be acknowledged - and then sometimes it should be let go.  A lot of personal agency and empowerment falls by the wayside when the process is essentially directed by judges and lawyers.  Parties in a court case don't always get the remedy they're seeking, and the cases can drag on for years.  Many of the cases we've read in class provide no resolution at all because of a procedural slip-up.  Often all people really seem to want is a recognition from the other party of the problem - they're not necessarily after vast sums of money.  Mediation cannot be the solution to every dispute, but in an increasingly disconnected world, it seems like having people listening to each other is a really good place to start.