1. www.mediation-negotiation.com The Analytical Empathiser Some theoretical perspectives on mediation CEDR Forum September 2005 Dr John Clark

2. www.mediation-negotiation.com © John Clark 20052 What kind of theories do we have about mediation techniques? Soft v hard? Art v science? Qualitative v quantitative? Heart v head? Romance v rationality? Yin v yang? Female v male?

3. www.mediation-negotiation.com © John Clark 20053 Introducing the Analytical Empathiser HighLow Poor empathiser Poor analyser Low High Analysis skills Empathy skills Identifies with emotions and thoughts. Responds with appropriate emotions THE MEDIATOR Deploys excellent empathy skills Combines with rapid analytical problem solving skills Analyses negotiation systems. Uses analysis to problem solve

4. www.mediation-negotiation.com © John Clark 20054 Mediation theory is interdisciplinary Game theory and economics of bargaining eg: Structure -> dynamics Negotiation tactics Decision theory: Decisions under uncertainty Probability biases Social and cognitive psychology eg: Overconfidence Reciprocity Other disciplines US main source of theory. Especially: Harvard Negotiation Project Stanford Centre on Conflict and Negotiation

5. www.mediation-negotiation.com © John Clark 20055 Game theory insights Game theory and economics of bargaining

6. www.mediation-negotiation.com © John Clark 20056 Mediation as a three stage game OUTCOMESTRUCTUREDYNAMICS Description Parameters which bound possible negotiation outcomes. Difficult to change in short term Factors (PILOT) People Issues, interests and goals Linkages and relations Options and alternatives Time catalysts Description Actions, interactions and behavioural patterns Determined by Structural Factors Party Activities 1.Exchange information 2.Open and make concessions 3.Close and gain commitment Mediator Skills Empathy Analysis Description Results of mediation Financial Emotional/relational Other

7. www.mediation-negotiation.com © John Clark 20057 Structure determines mediation dynamic OUTCOMESTRUCTUREDYNAMICS …more competitive…more co-operative PeopleCompetitive natureCo-operative nature IssuesSingle or fewMultiple LinkagesNo relationship or linked/repeated negotiations Relationship or linked/repeated negotiations Mediation dynamic tends to be…

8. www.mediation-negotiation.com © John Clark 20058 Dynamics: the negotiation dance. The negotiation dance or concession pattern: Movement signals likely endpoint Decreasing increments Increasing accuracy Concession pattern more important than opening bid Preliminary bids typically start outside ZOPA 0 0.5 1.0 1.5 2.0 2.5 3.0 3.5 4.0 1234567891011 £m Offer number Typical bidding pattern

9. www.mediation-negotiation.com © John Clark 20059 Bargaining theory teaches the importance of differences Parties differ in:ExampleMediator Action ValuationOne party with strong reputation concerns Suggest trade between high exchange rate items Probability assessmentDifferent assessments of future revenues Suggest contingent contract Risk aversionOne party has riskier assessment of future performance Suggest guarantee to risk averse party Time horizonOne party has cash flow problems Suggest early money to impatient party

10. www.mediation-negotiation.com © John Clark 200510 Decision theory insights Decision theory: Decisions under uncertainty Probability biases

11. www.mediation-negotiation.com © John Clark 200511 Parties need to distinguish between goals, expectations and bottom lines - Goal - Expectation - Bottom Line Parties aspiration. Their highest legitimate expectation. They feel they deserve this. Source: Prior success and failure Industry norms Other partys options Their personality They walk away for anything less than this. Also known as: Reservation price Walkaway value BATNA (best alternative to a negotiated agreement) Use DECISION TREES to calculate

12. www.mediation-negotiation.com © John Clark 200512 One key insight from decision theory is our asymmetric attitudes to risk. I offer to give you £50. Alternatively I can flip a coin. In this case you get £100 for heads and nothing for tails. Take the money or flip the coin?

13. www.mediation-negotiation.com © John Clark 200513 A key insight from decision theory is our asymmetric attitudes to risk. Sadly the tables have been turned. Now you can either pay me £50, or… We flip a coin and you pay me £100 for heads or nothing if it is tails. Take the money or flip the coin?

14. www.mediation-negotiation.com © John Clark 200514 A key insight from decision theory is our asymmetric attitudes to risk. We prefer a sure gain to a gamble, but prefer to gamble than take a sure loss. And so do parties facing a settlement offer or going to court…

15. www.mediation-negotiation.com © John Clark 200515 Social and cognitive psychology insights Social and cognitive psychology eg: Emotional intelligence Reciprocity Reactive devaluation

16. www.mediation-negotiation.com © John Clark 200516 Two broad categories of cognitive illusion: opening bid and negotiation dance illusions 1234567891011 £ Offer number Typical bidding pattern Opening bid illusions Overconfidence Anchoring Framing Probability problems Negotiation dance illusions Mental accounting Herding Reciprocating Committing and being consistent

17. www.mediation-negotiation.com © John Clark 200517 Commitment and consistency bias £20 auction: –Highest bidder gets the £20 note –Second highest bidder also pays their bid amount Winners? –Auctioneer –Non bidders What is happening? –Instead of minimising losses, players stick to initial commitment and escalate –Milk has been spilt, but they insist on spilling more

18. www.mediation-negotiation.com © John Clark 200518 Summary HighLow High Analysis skills Empathy skills THE MEDIATOR Deploys excellent empathy skills Combines with rapid analytical problem solving skills Good mediators use analysis and empathy to resolve disputes. For example, they: Empathise: Uncover issues/needs Modify emotional communications Correct misunderstandings and miscommunications Analyse: Understand negotiation dynamics Test unrealistic positions Identify difference opportunities Theory suggests the best mediators are Analytical Empathisers

19. www.mediation-negotiation.com © John Clark 200519 Policy implications? Should mediators work in teams more often to balance analysis and empathy? Should the UK seek an academic equivalent to the US in mediation and negotiation? Should advanced mediation qualifications be linked to knowledge of these types of theories? Copy of presentation and other resources on: www.mediation-negotiation.com