Creating Effective Communication in Your LifeRandy Fujishin*(*Creating Communications: Exploring and Expanding your Fundamental CommunicationSkills, 2nd Edn., Rownman Littlefield Publishers.2009, pp 1-17)

Case Summary

*Citation*
*Keywords*
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*Issues*
*Contentions*
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Full Case Details

Portion Relevant for LB-602 Retained

THE PROCESS OF COMMUNICATION
Let’s begin with an examination of communication itself, for it is communication that enables us to
experience our lives and share experiences with others. The late-night talks, the laughter, the gentle touches,
the tears, the encouragement, and the thousands upon thousands of other communication acts all combine to
create what you experience as life. Our communication with others is not a little thing. It is life
itself. The importance of communication cannot be overstated. It is often suggested that
“Once a human being has arrived on this earth, communication is the single most important
factor determining what kinds of relationships he makes and what happens to him in the
world.” In other terms, it is stated that “How he manages his survival, how he develops
intimacy, and how he makes sense of his world are largely dependent upon his
communication skills.”
So, what exactly is communication? Let’s define communication in a way that emphasizes
your creative involvement in the communication process. Communication is the process
whereby we create and exchange messages.
A Process
Any activity can be viewed as a thing or a process. A thing is static, time bound, and unchanging. A process
is moving, continually changing, with no beginning or end. In our definition, communication is a process—
something that is continually changing. Individual words, sentences, and gestures have no meaning in
isolation. They make sense only when viewed as parts of an ongoing, dynamic process.
To fully understand the process of communication, we must notice how what we say and
do influences and affects what the other person says and does. We must pay attention to the
changes we experience and how these changes influence and affect our perception,
interpretation, and interactions with others, from moment to moment, year to year, and decade
to decade.
Similarly, we also need to be sensitive to the ongoing changes in those we communicate
with because they are changing too. Communication is alive, and to fully appreciate it
requires that we view it as a dynamic, fluid, and continually changing process.
36 Creating Effective Communication in your Life
Creating Messages
Language in any culture contains thousands if not hundreds of thousands of words to select from and arrange
in endless combinations to form the basic structures of verbal communication. There are even more subtle
and not-so-subtle nonverbal (or nonlanguage) communication behaviours that can be added to the mix.
It is our ability to create messages from the verbal and nonverbal dimensions of
communication that truly distinguishes us from all other forms of life. Our ability to create
communication not only is the most significant way humans differ from animals and plants,
but it also may be one of the deepest and strongest drives within us—to express and share
who we are. What more powerful and significant way to express who and what we are than by
communicating our thoughts and feelings with others?
Exchanging Messages
After selecting the words, sentences, and nonverbal cues to form the thought or feeling we are attempting to
communicate, we send the message to the recipient, who processes the message and gives a response in the
form of feedback. The recipient’s role in the communication process is also a creative process, because what
he or she selectively perceives and interprets from the original message will determine the meaning of the
message for him or her. The message recipient then creates a response from all the words and nonverbal
behaviours available. Receiving and creating a response is just as important as creating and sending the
original message.
VERBAL AND NONVERBAL COMMUNICATION
The communication process has two forms—verbal and nonverbal. Both forms usually
operate together in the majority of messages you send and receive.
Verbal communication is all spoken and written communication. A mother whispering
reassuring words to a child, a speaker addressing an audience of five thousand, or a sunbather
reading a book on the beach is utilizing verbal communication.
Nonverbal communication is all communication that is not spoken or writ-ten. It is your
body type, voice, facial expressions, gestures, movement, clothing, and touch. It is your use of
distance, use of time, and the environment you create. It is your laughter, your tears, your
gentle touch, your relaxed breathing, the car you drive, and the colour of your pen. All these
things and countless others make up your nonverbal communication.
Verbal communication and nonverbal communication enable you and me to communicate.
They provide all that is necessary for the process of connecting, and it is our privilege to use
them creatively, effectively, and meaningfully.
COMPONENTS OF COMMUNICATION
Even though the following seven components of communication operate almost
instantaneously, we will examine them separately to more clearly understand their specific
Creating Effective Communication in your Life 37
function. The seven components are source, message, receiver, encoding, channel, decoding,
and context.
Source: The source is the originator of the message. It is the person or persons who want to communicate a
message to another person or a group of people. The source of a message can be an individual speaker
addressing a group, a child asking for candy, a couple sending out invitations to a family reunion, or a person
writing a letter.
Message: The message is the idea, thought, or feeling that the source wants to communicate.
This message is encoded or converted into verbal and nonverbal symbols that will most likely
be understood by the receiver.
Receiver: The receiver is the recipient of the message. The receiver can be an individual or a group of
people. Once the receiver hears the words and receives the nonverbal cues from the sender, she must
interpret or decode them if communication is to occur.
Encoding: Once the source has decided on a message to communicate, he must encode or
convert that idea, thought, or feeling into verbal and nonverbal symbols that will be most
effectively understood by the receiver. This encoding process can be extremely creative
because there are unlimited ways for the source to convert the idea or feeling into words and
behaviours.
Consider a simple message such as “I want to see you again.” The source can simply say,
“I want to see you again,” and smile as he says the words. He can also say, “Let’s get together
again,” and cast a humorous glance, or he can murmur, “I need to see you again,” with direct
eye contact and outstretched arms. He could simply scribble a note on a napkin saying, “We
need an encore,” and place it gently in front of the other person. There are countless ways to
encode this simple message and each one would be received and interpreted by the recipient
in a slightly different way.
The important thing to remember is that you can open yourself up to the end-less
possibilities of selecting, arranging, and delivering messages you want to communicate. Your
willingness to put greater creativity into the encoding process will enhance and deepen your
communication with others.
Channel: A channel is the medium by which the message is communicated. The source can utilize the
channels of sight, sound, touch, smell, and taste. For instance, if you want to communicate affection for
another person, you can utilize a variety of channels or combination of channels. You can say, “I like you”
(sound). You can give a hug (touch). You can wink an eye (sight). You can send cookies that you baked
(taste). Or you can deliver a dozen roses (smell). You can creatively select the channels of communication to
productively communicate your message.
Decoding: Decoding is the process of making sense out of the message received. The receiver
must decipher the language and behaviours sent by the source so they will have meaning.
After the receiver decodes the message, the receiver (now the source) can encode a return
message and send it back to the other person.
38 Creating Effective Communication in your Life
Context: All communication occurs within a certain context. The context is made up of the
physical surroundings, the occasion in which the communication occurs, the time, the number
of people present, noise level, and many other variables that can influence and affect the
encoding and decoding of messages. The context plays an important role in the
communication process.
As you consider the effects that the context can have on communication, you might want to
put your creativity to good use. Think of ways you can create a serene, healthy, and
productive communication environment. Simple things like choosing a time when you both
have an opportunity to meet. Making the actual physical surroundings clean, uncluttered, and
peaceful. Maybe straightening up the house, buying some flowers to cheer the place up, and
even putting on some soothing background music. Perhaps a drive in the country or a walk in
a park will create a more relaxed context in which you can communicate more effectively.
Whatever you do, remember that you can have some influence over the context in which
communication occurs within your life.
PERCEPTION
To more fully understand communication, we must recognize the importance of perception.
Perception is the process by which we assign meaning to a stimulus. Or put another way,
perception is giving meaning to the things we see and experience.
Selection
The process of perception involves our five senses. We see, hear, touch, smell, and taste.
From these five senses we take in the stimuli of the world. It’s from these five senses that we
receive information to make sense of our lives. Because we are exposed to much more stimuli
than we could ever manage, the first step in perception is to select which stimuli to attend to.
In other words, we don’t attend to every stimulus that is present at any given moment.
Even in the location where you’re reading this book, if you were to count each stimulus in
your field of vision, the number would be in the thousands, perhaps the tens of thousands. To
pay attention to each stimulus at the same moment would be impossible. So you have to
decide—do you select the words in this sentence or gaze at your left foot? Each selection
changes your focus of vision. You can’t select all the things, so you must select a few.
Interpretation
Once we have selected our perceptions, the second step is to interpret them in a
way that makes sense to us. Interpretation is the act of assigning meaning to a
stimulus. It plays a role in every communication act we encounter. Is a friend’s humorous
remark intended to express fondness or irritation? Does your supervisor’s request for an
Creating Effective Communication in your Life 39
immediate meeting with you communicate trouble or a pay raise? When an acquaintance says,
“Let’s do lunch,” is the invitation serious or not? Almost every communication act we
encounter involves some level of interpretation on our part. Let’s examine some factors that
influence our perception.
Physical factors.
The most obvious factors that influence our interpretation are physical. What is the condition
of our five senses? Can we see accurately or do we need glasses? Can we hear sufficiently or
is our hearing diminished by age? Can we smell and taste sharply or are allergies causing
difficulties? Can you touch and feel with adequate sensitivity or do clothing and gloves make
it hard?
The time of day affects how we physically process the sensory input. Are you more awake in
the morning or late at night? Some people are most alert and attentive in the morning, while
others come alive late at night.
Your general state of health can influence interpretation. When you are ill, hungry, or
depressed, you see and experience a very different world than when you are healthy, well fed,
and cheerful.
Age also can affect your interpretation. Older people view the world and events with a great deal more
experience than do younger people. By simply having lived longer, older people have generally been
through more of life’s developmental stages—early adulthood, parenthood, grandparenthood,
retirement. Younger people, on the other hand, usually have much more physical energy and
time to play, explore, and investigate the world around them. With fewer life experiences,
younger people interpret life differently.
Other physical factors are fatigue, hunger, stress, monthly biological cycles, diet, and
exercise. Our bodies play an important role in our interpretation of the world.
Psychological factors. The second category of factors that influence interpretation is psychological or
mental. For example, education and knowledge affect how we see the world around us. An individual who
never went beyond the seventh grade sees a much different world than an individual who has completed
law school. A trained botanist sees a forest far differently than does a first-grader.
Past experiences also affect how we interpret perceptions. Someone who grew up happily
on a farm may view rural environments very differently than some-one who grew up in New
York City. A victim of robbery may be more fearful of a darkened street than someone who
has never experienced a crime. An individual who grew up in a loving, stable family may
have a more positive view of raising children than a person who grew up in a cold, unstable
family.
Assumptions about people and the world in general influence interpretations also. A belief
that people are basically good and honest, or basically untrustworthy and self-serving, will
affect how we view the actions of others.
40 Creating Effective Communication in your Life
Finally, moods will influence how we interpret the things we see and experience. When we
are feeling successful and competent, we see a very different world than when we are feeling
sad, lonely, and depressed.
Cultural factors. A person’s cultural background can affect and influence his or her
interpretation of the world. Chapter 5 is devoted to intercultural communication and the role
culture plays in how we communicate with those who are different from us. For now, we’ll
just briefly mention some cultural factors that influence perception.
Every culture has its own worldview, language, customs, rituals, artefacts, traditions, and
habits. These factors not only affect how people perceive and interact with one another within
a given culture, but also, they influence how they interact with people of different cultures.
Culture can shape and determine how an individual sees the world. Americans interpret direct
eye contact as a sign of confidence, honesty, and politeness, whereas Japanese interpret the
same direct eye contact as rude and confrontational. People from Middle Eastern countries
often converse within a few inches of each other’s face, whereas Americans would find such
closeness violation of personal space. For Americans, the “okay” sign made with the thumb
and the forefinger is a sign that everything is fine, but in many cultures, it is an obscene
gesture.
Position in space. The final factor that influences perception is position in space. Where we
are determines how we see things. For instance, if you sit at the back of a classroom, you will
perceive a very different environment than if you sit in the front row, right under the nose of
the lecturer. The same holds true for adult interaction with children. You will perceive
children differently if you kneel down to their eye level rather than stand over them. You even
pay higher prices for better viewing positions. Think of the last concert, sporting event, or
resort you attended or visited. The closer seats or the rooms with a view generally cost more.
Perception Checking
Because so many factors influence perception, what can we do to create more effective
communication? Perception checking is a method for inviting feedback on our interpretations.
Perception checking involves three steps:

An observation of a particular behaviour.
Two possible interpretations of that behaviour.
A request for clarification about how to interpret that behaviour.
Many times people observe and interpret the behaviour, and that’s the end of it. Often their
interpretations can be easily and readily corrected with a simple perception check. Here are
two examples of how perception checking works:
“I noticed you haven’t been in class for the past two weeks. (observed
behaviour) I wasn’t sure whether you’ve been sick (first interpretation) or were
dropping the class. (second interpretation) What’s up?” (request for
clarification)
Creating Effective Communication in your Life 41
“You walked right past me without saying hello. (observed behaviour) It makes
me curious if you’re mad at me (first interpretation) or just in a hurry. (second
interpretation) How are you feeling?” (request for clarification)
Often, perception checking is more to the point. You may not want to use all three steps:
“I see you rolling your eyes at me. (observed behaviour) What’s the matter?”
(invitation for clarification)
“Are you certain you want to go to the movies? (request for clarification) You
don’t act like you’re too enthusiastic.” (observed behaviour)
Perception checking can be a simple technique for clarifying communication behaviour in
a way that is not threatening or confrontational. It simply asks for clarification.
PRINCIPLES OF COMMUNICATION
The portion has been edited to suit the requirements of the course. LB-602
Certain generally accepted truths or principles of communication are important to consider
when communicating with others. These principles hold true for all people in every culture.
By understanding these principles, you will experience greater communication effectiveness.
Communication Is Constant
You cannot not communicate. In other words, you are always communicating. Too often we
think that if we are not talking, we are not communicating. You may not be communicating
verbally, but your nonverbal communication is constantly displaying signs and cues that
reflect what you are thinking and feeling internally. Your posture, gestures, facial expressions,
clothing, use of time, and even the car you drive are just a few of the nonverbal messages that
others perceive and interpret.
Even when you are speaking, your tone of voice, rate of speech, pitch, volume, pauses or
lack of pauses, and vocal fillers such as “ah” and “um” are some of the nonverbal behaviours
that can convey what you’re thinking and feeling beneath the level of language. You’re
always communicating.
42 Creating Effective Communication in your Life
Communication Is Irreversible
“Forget I said that.” “I’m sorry I did that. Let’s pretend it never happened.” We have all
issued statements like these in an attempt to erase or diminish the impact of an angry word or
action. Even though the other person agreed to forget or dis-miss the statement or behaviour,
the memory of a careless word or deed can last a lifetime. I’m sure you can recall a stinging
criticism or hurtful act you experienced during childhood. The memory of the criticism or act
can linger and haunt you many years later. Likewise, uplifting, positive, and healing words
and deeds can also be carried in the hearts and minds of others forever.
Your every word and deed can leave an indelible imprint on the minds and hearts of others.
Be conscious of your choices as you create messages to others.
Communication Is Creative
The last principle of communication is that it is creative. This creativity is much broader than
the creativity associated with art, music, and poetry. It is the creativity expressed in your daily
communication, in the unique and special ways you communicate: When you choose to be
silent. The way you listen. The
times you choose to speak. The words you select from your vocabulary palette and the
sentences you create. The combinations of facial expressions, gestures, movements, and
postures you choose to express your thoughts and feelings. The letters you send. The
telephone calls you make. The clothes you wear. The car you drive. The room you decorate.
The home you live in. These are just some of the ways you create communication in your life.
Your communication and the impact it has on others does not just happen. You make it
happen. You decide whether or not to return a phone call. You decide whether or not to
respond to a lunch invitation. You decide whether to respond in kindness or in anger to a
criticism levelled your way. You create by choosing one behaviour and not another. You are
always creating something in your communication life.
DO YOU ENLARGE OR DIMINISH OTHERS?
I believe that we enlarge or diminish others with our communication. We heal or hurt others
with our words. People go away from our interactions feeling a little better or a little worse
than before.
You are free to create the words and behaviours that will ultimately enlarge or diminish the recipient of your
message. No one is writing your script or coaching your movements and gestures. You are ultimately the
scriptwriter, the dialogue coach, the director, and the speaker who will deliver the lines. You are given a
great deal of creative latitude for how you create your messages during your life. What will you create? Will
you enlarge or diminish others with your communication?
Creating Effective Communication in your Life 43
Inside you there is an artist you might not know just yet. But relax, continue reading, and
gently welcome the artist within you. The highest art you will ever create lies ahead—the art
of communication.
Exercises below are intended to help you explore and experiment with
new ways of communicating in a variety of settings and to expand
your thoughts about who you are and the communication possibilities
available to you.
Exploring Creative Tasks
Listen for thirty seconds or more without verbally interrupting a friend during a
conversation. What changes did that create? What was your friend’s response? How did
you feel not interrupting as much?
Use perception checking in situations when another person’s communication or
behaviour is confusing, ambiguous, or unclear. What were the results of your
perception check? What changes did it create in the conversation?
List ten positive characteristics or traits a friend possesses. Share the list with your
friend. In your opinion, was the experience enlarging or diminishing for your friend?
What makes you think so? Has this conversation changed your relationship?
Keep a daily journal of specific instances when you were consciously aware of
attempting to create more positive messages to others. What does it feel like to keep this
journal? What are you learning about yourself? About others?
Expanding your creative thinking
What are some of your current creative activities or hobbies? What art forms or
creative activities would you like to do in the future? What benefits do you think you
would derive from them? When would you like to begin these artful activities?
In what specific ways could you be more positive and enlarging in your communication
with loved ones and friends? With co-workers and casual acquaintances? How do you
think more positive communication behaviours would change your relationships with
these people?
What factors influence your perception and communication during a given day? When
are you the most alert, positive, and energetic? Are there any specific ways you modify
or improve your “view” of others? What are they? Can you think of any other ways to
“see” the best in others?
List five specific changes that you could undertake that would make you more selfaccepting, calm, and loving. Tape this list to your bedroom mirror or your car

dashboard to remind yourself of your goals.

Body Language (Non-verbal Communication)
Observing yourself and others is non-verbal communication – the way we express
ourselves, not by what we say, but by what we do.
Stop for a moment and examine yourself as you read this. If someone were observing
you now, what non-verbal clues would they get about how you are feeling? Are you
sitting forward or reclining back? Is your posture tense or relaxed? Are your eyes wide
open, or do they keep closing? What does your facial expression communicate? Can
you make your face expressionless? Don’t people with expressionless faces
communicate something to you?
Of course, we do not always intend to send non-verbal messages. Consider, for
instance, behaviors like blushing, frowning, sweating, or stammering. We rarely try to
act in these ways, and often we are not aware when we are doing so. Nonetheless,
others recognize signs like these and make interpretations about us based on their
observations.
Understanding that you, and everyone around you, are constantly, sending off nonverbal cues is important because it means that you have a constant source of
information available about yourself and others. If you can tune into these signals, you
will be more aware of how those around you are feeling and thinking, and you will be
better able to respond to their behavior
Non-verbal Communication Transmits Feelings
Although feelings are communicated quite well non-verbally, thoughts do not lend
themselves to non-verbal channels. Without being able to use words, peoples’ bodies
generally express how they feel – nervous, embarrassed, playful, friendly, etc. What
they think has to be gathered through some verbal medium.
Here is a list that contains both thoughts and feelings. Try to express each item nonverbally, and see which ones come most easily:
You are tired.
You are in favor of capital punishment.
You are attracted to another person in the group. You think marijuana should be
legalized.
You are angry with someone in the group.
Non-verbal Communication Serves Many Functions
Verbal and non-verbal communications are interconnected elements in every act of
communication. Non-verbal behaviors can operate in several relationships to verbal
messages.
a. First, non-verbal behaviors can repeat what is said verbally. If someone asked you
for directions to the nearest drugstore, you could say, “North of here about two blocks,”
and then repeat your instructions non-verbally by pointing north.
Body Language (Non-verbal Communication) 45
b. Non-verbal messages may also substitute for verbal ones. When you see a familiar
friend wearing a certain facial expression, you do not need to ask, “How’s it going?” In
the same way, experience has probably shown you that other kinds of looks, gestures,
and other cues say, “I’m angry at you” or “I feel great” far better than words.

Perceptions of the Two-Way Communicator
The “two way communicator” is someone who:

Seeks, encourages feedback from receivers on how a message was understood;
Asks many questions to assure understanding of another’s message;
Establishes a climate for routine give and take;
Does not punish honesty or negative messages;
Shows nonverbal comfort with dialogue;
Common Perceptions
The two way communicator:

Likes people
Is receptive to new information
Is fair
Wants full information before making important decisions
Is well liked by others
Dislikes extreme formality and control
Enjoys helping people feel comfortable
Feels good when communication is successful
Is a good listener
Believes that “perceptions” are very important and legitimate
Likes to learn from others
Is a good interpersonal communicator
46 Body Language (Non-verbal Communication)
Lessons of the One-Way/Two-Way Exercise
One-Way—little or no verbal feedback from receiver; no chance to check
perceptions
Two-Way—relatively free interaction between sender and receiver
One- way is usually faster; two way is usually more accurate.
Two-way is expensive (time, money, energy); one way may be more expensive
in the long run if misunderstanding causes errors, problems, conflict.
One-way gives control to the sender; two-way gives some control to the
receivers.
In one-way, receivers may seek out unreliable information sources; in two -way,
receivers have access to the reliable source- the sender.
Two-way includes risk by both the receiver and sender, one-way is perceived as
less risky.
The one-way/two-way choice is a function of rewards, senders evaluate the
relative payoffs of both options.
To Improve One-Way Communication:
◼ Prepare a message carefully, if message is to be spoken, practice
◼ Use previews, summaries, repetition; supplement with examples, specifics
◼ Evaluate intended receivers; adapt to specific individuals or groups
◼ Use visual support
To Improve Two-Way Communication:
◼ Seek out feedback…..don’t wait for it
◼ Avoid defensive reactions to questions, challenges
◼ Reinforce people who ask questions(remember most of us have been punished
for this behaviour in the past)
◼ Use past feedback as a guide to future communication with the same or similar
people
NEGOTIATION- INTRODUCTION, STYLE AND STRATEGIES
(a) Negotiation
(b) Exercise: The negotiating style profile
(c) Definitions of negotiation
(d) Development of conflict
(e) Negotiating techniques
(f) Eight critical mistakes
(g) Being assertive in negotiation
(h) Exercise: Questionnaire: opinions and attitudes
(i) Negotiation: the art of negotiating
NEGOTIATION- INTRODUCTION, STYLE AND STRATEGIES
NEGOTIATION
I. In the space below, write what the word “negotiation” means to you.
Negotiation – Whenever we attempt to influence another person through an exchange of
ideas, or something of material value, we are negotiating. Negotiation is the process we use to
satisfy our needs when some else controls what we want.
(EXERCISE)
THE NEGOTIATING STYLE PROFILE
The following instrument is designed to help you gain a deeper understanding of your
negotiating style. There is no right or wrong answers. The data provided by this instrument
will only be valid if you respond candidly to each of the statements.
Directions: There are 30 statements in this instrument. Please respond to each statement by
circling the number corresponding to the response that most accurately reflects the extent to
which the statement is descriptive of your thinking.
Strongly disagree 1
Disagree 2
Slightly disagree 3
Neither agree or disagree 4
Slightly agree 5
Agree 6
Strongly agree 7
Example:
48 Negotiation Strategies
I often feel I lack the power to produce a successful outcome. SD D SD ? SA A SA
1 2 3 4 5 6 7
Directions: For each statement, circle the number that most accurately reflects the extent to
which that statement is descriptive of you or your thinking. Remember to be called in your
responses.
Strongly disagree 1
Disagree 2
Slightly disagree 3
Neither agree or disagree 4
Slightly agree 5
Agree 6
Strongly agree 7
Please turn the page and complete the instrument
SD D SD ? SA A SA
When I negotiate, my interest must prevail. 1 2 3 4 5 6 7
I try to identify common interests to use as a basis for
satisfying both parties needs.
1 2 3 4 5 6 7
I put aside unpleasant confrontations in favour of a friendly
approach.
1 2 3 4 5 6 7
Negotiators are adversaries. 1 2 3 4 5 6 7
I am unable and week to take care of myself. 1 2 3 4 5 6 7
I often feel I lack the power to produce a successful outcome. 1 2 3 4 5 6 7
I enjoy the reputation of tough battler. 1 2 3 4 5 6 7
Negotiation may be said to be effective when both Parties get
their needs satisfied.
1 2 3 4 5 6 7
Half a loaf is better than none. 1 2 3 4 5 6 7
Negotiation is a contest of wills. 1 2 3 4 5 6 7
You have to make concessions to the other party to build the
relationship.
1 2 3 4 5 6 7
I acknowledge that my co. has made a mistake. 1 2 3 4 5 6 7
You should do unto others before they do it to you. 1 2 3 4 5 6 7
Affable relationships produce the best results. 1 2 3 4 5 6 7
Compromise is the essence of effective negotiation. 1 2 3 4 5 6 7
An effective negotiator employs threats, bluffs, surprises. 1 2 3 4 5 6 7
I keep a low profile during a negotiating discussion. 1 2 3 4 5 6 7
Split the difference is my motto. 1 2 3 4 5 6 7
I am unable to stand up for my rights 1 2 3 4 5 6 7
A soft word can win a hard heart. 1 2 3 4 5 6 7
Though the outcome is not fair to me, it will maintain
relationship
1 2 3 4 5 6 7
Negotiation Strategies 49
When negotiating, I attempt to work through our differences. 1 2 3 4 5 6 7
I search for a solution the other party will accept. 1 2 3 4 5 6 7
My approach is always to meet the other party halfway 1 2 3 4 5 6 7
The most successful negotiation makes everyone a winner. 1 2 3 4 5 6 7
I often let others take responsibility for solving the problem. 1 2 3 4 5 6 7
When I negotiate, I put a lot of effort into looking for tradeoffs so each party gets something out of the deal.
1 2 3 4 5 6 7
You choose; any thing is fine with me 1 2 3 4 5 6 7
I put aside decisions until conflicts have quieted down. 1 2 3 4 5 6 7
In a successful negotiation everyone gives something but
everyone also gains something.
1 2 3 4 5 6 7
Please do not turn the page until you have completed your responses.
Part I: Securing Key
Directions: The 30 statements in the instrument have been set up in five columns in the chart
below. Transfer the number corresponding to your answer to each statement to the
appropriate space in the chart. Then add up the total number of points in each columns and
enter the total in the space provided
Question Number
1_ 3_ 9_ 2_ 5_
4_ 11_ l 5_ 8 _ 6_
7_ 12_ 18_ 14_ 17_
10_ 20_ 24_ 22_ 19_
13_ 21_ 27_ 25_ 26_
16_ 23_ 30_ 29_ 28_
Total a_____ b_____ c_____ d_____ e_____
Defeat Accommodate Compromise Collaborate Withdraw
Part II: Negotiating Profile
Directions: In each of the style columns, circle the number representing the total points given
for that style in Part 1. Then connect the circled numbers to produce a plot line.
Defeat Accommodate Compromise Collaborate Withdraw
38 38 38 38 38
36 36 36 36 36
34 34 34 34 34
32 32 32 32 32
30 30 30 30 30
28 28 28 28 28
26 26 26 26 26
24 24 24 24 24
50 Negotiation Strategies
20 20 20 20 20
18 18 18 18 18
16 16 16 16 16
14 14 14 14 14
12 12 12 12 12
10 10 10 10 10
8 8 8 8 8
6 6 6 6 6
4 4 4 4 4
2 2 2 2 2
0 0 0 0 0
Part III Interpretation
The style with the highest number represents your preferred negotiating style. If two or more
styles have the same total, you probably use both styles and use them equally or alternatively.
Perhaps you use one as a primary or “first approach” style and switch to the second style as a
back-up.
The profile indicates the relative strength of our subscription to a particular style, as you
perceive it. To the extent that your responses were honest, the data will be representative of
our general philosophy of negotiating if, in fact, this philosophy is acted on, then the data
represents your negotiating behaviour style.
All styles have usefulness in selected situations. However, the most satisfying and rewarding
negotiations in the long term are achieved by consistent use of a Collaborative style. This
approach produces a win/ win outcome for both parties.
PREDOMINANT NEGOTIATION STYLES
Defeat – This pattern is characterized by win-lose competition, pressure, intimidation,
adversarial relationships and the negotiator attempting to get as much possible for him/
herself. Defeat the other party at any cost.
Collaborative – This pattern is characterised by searching for common interests with the
other party, problem solving behaviour, recognising that both parties must get their needs
satisfied for the outcome to be entirely successful. Collaborative behaviour and synergistic
solutions result. Working to build a win-win outcome is the main purpose of the negotiator.
Accommodate – This pattern is characterised by efforts to promote harmony, avoidance of
substantive differences, yielding to pressure to preserve the relationship, placing interpersonal
relationships above the fairness of the outcome. Accommodate the other party’s needs
becomes the negotiator’s style.
Withdraw – This pattern is characterised by feelings powerlessness, indifference to the
bargaining result, resignation, surrender, taking whatever the other party is willing to
concede. Withdraw and remove oneself becomes the behaviour of the negotiator.
Negotiation Strategies 51
Compromise – This pattern is characterised by compromise, meeting the other party half
way, looking for trade-offs, spitting the difference and half-way measures. Conflict reduction
is valued over synergistic problem solving. Finding an acceptable agreement is the objective
of this style.
Negotiation – Some Practical Definitions
Following are some accepted definitions of negotiation:
Whenever we attempt to influence another person through an exchange of ideas, or
something of material value, we are negotiating. Negotiation is the process we use
to satisfy our needs when someone else controls what we want. Every wish we
would like to fulfill, every need we feel compelled to satisfy, are potential situations
for negotiation. Other terms are often applied to this process such as: bargaining,
haggling, bickering, mediating or bartering.
Negotiation between companies, groups or individuals normally occurs because one
has something the other wants and is willing to bargain to get it.
Most of us are constantly involved in negotiations to one degree or another. Examples
include: When people meet to draw up contracts, buy or sell anything; resolve
differences; make mutual decisions; or agree on work plans. Even deciding where to
have lunch makes use of the negotiation process.
DEVELOPMENT OF CONFLICT
Whatever the type, whomsoever the conflict affects, it always arises cut of a four stage
process as follows.
Frustration
Conflict situations originate where an individual or group feels frustrated or about to be
frustrated in pursuit of important goals. The cause can be:

Performance goals;
Promotion;
Pay rises;
Power;
Scarce economic resources;
Discussion Questions
The value of your results from your negotiating profile will be greatly
enhanced through discussion of the following questions with others in your
training groups:

Do you think that your scores for the five negotiation styles actually
represents your usual behavior when faced with negotiation
situations at work? Why or why not?
What could you do specifically to increase your negotiating
effectiveness?
52 Negotiation Strategies

Rules;
Values;
In short, anything the individual or group cares about.
Thus, failing to achieve a target or goal may cause the start of the conflict cycle. At the
second state, parties to the potential conflict attempt’
To understand the nature of the problem;
What they themselves want as a resolution;
The various strategies they may employ to achieve that resolution.
This is the stage where conflict most often be turned to good use or avoided if careful
negotiation are employed. It is the moment of self or behaviour analysis. Effective analysis
will determine the right behaviour pattern for the future to correct the frustration felt as a
result of goal failure. False analysis will lead to behaviour that is doomed to increase the
frustration.
Behaviour
As a result of the conceptualisation process, parties to the conflict attempt to implement their
resolution by behaving in the pattern they have selected as most likely to achieve the desired
result.
Instant conceptualisation, when the party to the conflict is still feeling frustrated, usually leads
to worse behavioral patterns and further conflict.
Outcome
If the outcome results in one party feeling dissatisfied, the seeds will be sown for further
conflict. Whatever the result, the outcome will be part of the patterning and conditioning that
set the possible patterns of behaviour in future conflict.
Conflict can become an ever-decreasing; circle; the frustration leads to instant and false
conceptualisation, which in its turn causes further wrong behaviour, the outcome of which is
further frustration and even more false conceptualisatlion. The only way out of such a
situation is to break the conflict at the conceptualisation stage.
How we respond to conflicts/Handling conflict
It is only at the conceptualisation stage of conflict development that the most effective
solutions can be found, so part of handing conflict must be watching for the process of
conflict development to begin. Once the pattern of the developing conflict has been
established, help or self-help can be administered. Beware or starting too early and catching
the remaining frustration, which can easily turn to anger. Trying to solve a conflict with an
angry person is almost impossible and can result in the permanent rejection of the most sound
and sensible idea.
Competing
Competing is handling conflict head on. It is standing firm and rejecting the views and beliefs
of the other party or standing between the warring factions and demanding that the war cease.
Use it where:
A quick decision is vital;
Negotiation Strategies 53
Unpopular ideas on important issues must be implemented;
Issues are vital to the organisation and you know you are right;
Opponents take advantage of non-competitive behaviour.
Collaborating
Collaborating is less than the art of total compromise. It will in allprobability be the chosen
method for dealing with cognitive conflict to ensure that no one good idea is needlessly
sacrificed to the solution of conflict. To collaborate, take the ideas that come from both
parties to the conflict and try to find a way of developing them all, without detracting from
the overall goal. Use it where:
both sets of concerns are too important to be compromised;
your objective is to learn;
your wish to merge insights from different people;
you need commitment;
you need a dispel feelings that have interfered with a relationship.
Compromising
Compromise is the art of win-win negotiation. Both parties to the conflict should feel that
they have won but neither should feel any sense of loss. You will achieve it by using
negotiation tactics as described in Chapter 13. Use it where:
goals are important but not worth the disruption of mere assertive behaviour;
opponents with equal power are committed to mutually exclusive goals;
you wish to achieve temporary settlements to complex issues;
time pressure is great;
you need a back-up to failed collaboration or competition.
Avoiding
Avoiding means deciding not to get involved in the conflict and asking that it be shelved
elsewhere. Use it where:
the issue is trivial;
more important issues are pressing;
there is no chance of satisfying your concerns;
the potential disruption outweighs the benefits of resolution;
people need to cool down;
gathering information might help;
others can resolve the conflict more effectively;
issues seem intangible.
Accommodation
Accommodating is the art of accepting the situation and agreeing to back down in conflict.
Use it where:
you are wrong;
issues are more important to others than yourself;
you can build social credits for future issues;
you need to minimise loss, as you are outmatched and losing harmony and stability
are especially important;
54 Negotiation Strategies
subordinates need to learn by mistakes made.
Conflicts can be constructive
Don’t forget that conflict can be constructive. Without conflict an organisation cannot grow
and develop. Conflict is an essential part of change and creativity. Use it for:
problem solving;
engendering new ideas;
personality development;
training and educating;
role playing to establish potential problem areas.
Conflict and anxiety
As a result of conflict, individuals often experience considerableanxietybut can find no easy
way to reduce it. This is particularly the case where a solution to the conflict seems
unobtainable or long term. As a result, the suffering individuals apply defence mechanisms.
Three group types of defence mechanism may be employed:
Aggressive defence mechanisms
Fixation won’t budge from a point of view;
Displacement – redirecting pent up emotions towards hate objects or individuals.
Negativism-active or passive resistance, no cooperation.
Compromise defence mechanisms
Compensation- individual works harder to make up for feeling inadequate.
Identification- individual enhances self-esteem by copying the behaviour of someone
he admires.
Projection-individual pretends that his own undesirable traits are in fact attributable
to others.
Rationalisation- individual justifies behaviour and beliefs by providing explanations
for them.
Reaction formation- urges not acceptable to consciousness are repressed and the
opposite attitudes displayed in their place by the individual.
Withdrawal defence mechanisms
Conversion – emotional conflicts are expressed in muscular, sensory or bodily
symptoms of disability, malfunctioning or pain.
Fantasy – day-dreaming provides an escape from reality.
Regression – individual returns to an earlier and less mature level of adjustment in the
face of frustration .
Repression – impulses, experiences and feelings that are psychologically disturbing,
because they arouse a sense of guilt or anxiety, are completely excluded from
consciousness.
Resignation – apathy and boredom – switching off.
Withdrawal of flight – leaving the area of frustration either physically or mentally.
The anxiety feelings caused by conflict show in the conceptualisation and the eventual
behaviour outcome. Part of the resolution of conflict must be the treatment of the anxiety
based reactions. This is particularly important when trying to resolve one’s own conflicts.
Negotiation Strategies 55
Awareness of the normal reaction to anxiety should help to select the right approach at
conceptualization.
NEGOTIATING TECHNIQUES/STRATEGIES
SALAMI:
Salami is a technique used to achieve an objective a little bit at a time rather than in one giant
step. This strategy is said to have been named by Matyas Rakosis, General Secretary of the
Hungarian Communist Party who explained it this way:
“When you want to get hold of a salami which your opponents are strenuously defending, you
must not grab at it. You must start by carving yourself a very thin slice. The owner of the
salami will hardly notice it, or at least he will not mind very much. The next day you will
carve another slice, then still another. And so, little by little, the salami will pass into your
possession.
You want to buy 5 acres of land from an elderly gentleman, who for sentimental reasons
does not want to sell more than 1 acre now. You are in no hurry to acquire all 5. How would
you approach the old gentleman?
Check Your Response with the One on the Next Page
From no to yes

Listen Actively
Show them you understand

they feel strongly
what they feel strongly about
why they feel strongly about it

Win yourself a hearing
Explain your own feelings (backed up by fact)

refer back to their points
make your points firmly but stay friendly

Working to a joint solution

seek their ideas
build on their ideas (don’t knock them down)
offer your ideas (don’t try to impose them)
construct the solution from everyone’s needs
APPLYING THE SALAMI STRATEGY
Offer to buy one acre now with an option to buy the other four, one acre at a time, over the
next four years.
56 Negotiation Strategies
FAIT ACCOMPLI:
Residents of a community called Hillview woke up one morning to discover a local developer
removing the top of a peak, which was an appealing part of their view. The developer did not
have a legally required permit, but once removed the hill top could not be restored. The
strategy he used is called Fait Accompli. He took action to accomplish his objective risking
acceptance because he did not wish to spend the necessary time, effort or expense to follow
the established guidelines. In effect the developer said, “I did what I wanted to, so now what
are you going to do?”. This can be risky. Those who employ it must understand and accept
the consequences if the strategy fails. For example, the same developer later put up a fence in
violation of local ordinances. This time the citizens protested and he was required to tear
down the fence and move it to a legal boundary at considerable expense.
Some examples of Fait Accompli are given below. Please indicate how you would respond to
them.
FAIT ACCOMPLI RESPONSE
A contract was sent to you containing a
provision you did not agree to and find
unacceptable.
You took your old vehicle to a garage to
obtain a cost estimate on repairs. When you
returned you found they already repaired it
and presented you with a bill for $750.00
POSSIBLE RESPONSES TO FAIT ACCOMPLI

Use Fait Accompli yourself. Delete the unacceptable clauses from the contract and
send it back.
Several options including the following are possible:

Refuse payment.
Appeal to higher authority. Take it to the owner.
File, or threaten to file a lawsuit. If local laws or ordinances have been
violated, appeal to enforcing agencies for assistance.
Tell others what happened to you. Document your case and let the public and
others know of the unethical practices.
STANDARD PRACTICE:
“Standard Practice” is a strategy used to convince others to do or not to do something because
of so called “standard practices”. It often work very well because it infers it is the best way to
do whatever needs to be done, and is probably a safe approach. Standard contracts are an
example of this strategy. The party suggesting a standard contract assumes no one would want
to change it, because it reflects what others routinely agree to under the circumstances. Often
the other party will accept this fact of life, however, those who wish to test it can have good
results.
Negotiation Strategies 57
A plumber who was contracted to install plumbing in a new home told his customer the
payment terms were 30% when he started the job, 60% when it was half completed and 100%
on completion. When the customer refused to accept the agreement, the contractor said the
terms were industry standards and showed him the standard contract to prove it. The customer
refused to sign. Finally, the contractor agreed to 30% at the start, 30% at the half-way point
and 40% upon completion. This assured the customer that the plumbing would be finished
before the contractor could take his profit, but provided adequate funds for the plumber to
carry out the project.
DEADLINES:
Time is critical to people and organisations. Consequently deadlines can be an effective
negotiation strategy. All too often we are aware of time pressures upon ourselves. But assume
the other party has plenty of time. A better assumption would be that if we have deadlines, the
other party probably has them too. The more we learn about the other party’s deadlines the
better we can plan our strategies. When others attempt to force us to their deadlines, we
should not hesitate to test them. Most sales in retail stores that “start” on Tuesday and “end”
on Friday, can be negotiated so that a buyer can take advantage of them on a Monday or
Saturday as well. Most hotels will extend their check out time beyond 12 noon if you are
willing to negotiate for a later time. Proposals requested by the 1st of the month arc often just
as acceptable on the 2nd. Deadlines are usually as demanding as we are willing to think they
are. The more we know about the person or organisation that set them, the better we can
evaluate what they really mean.
Before entering a negotiation, ask yourself these questions:

What actual deadlines and time constraints am I under? Are these self imposed or
controlled by someone else?
Are these deadlines realistic? Can I change them?
What deadlines might be controlling the other side? Can I usc these to my
advantage?
Here is a dialogue between Dick Thomas a purchasing agent and Rick Forest, an office
equipment sales manager.
Mr. Thomas: The supersonic typewriters you are suggesting will meet our requirements. Can
you provide 3 by next Monday for $4,500?
Mr. Forest : I am not sure we can. Because you also want the output energizer that puts the
price for 3 over $5,000
Mr. Thomas: That’s more than our budget allows for this purchase.
Mr. Forest : Well, I am sorry about that. To meet your price, I would have to talk to my
District Manager and he is hard to reach.
What might Mr. Thomas say to get Mr. Forest to agree to supply the typewriters for $4,500,
or at least to make some price concession with minimum delay?
When you have completed your response, compare it with the possibilities suggested on the
next page.
58 Negotiation Strategies
Possible Response by Mr. Thomas
Well I’m sorry we can’t make a deal. I have an appointment this afternoon with High Speed
and Quickline. Both have indicated they can provide comparable equipment at a cost within
our budget. The department head who wants these machines is leaving tomorrow for 2 weeks
vacation. He will make his choice before he leaves today.
FEINTING:
Feinting gives the impression one thing is desired when the primary objective is really
something else. An employee, for example, may negotiate with the boss for a promotion when
the real objective is a good increase in salary. If the promotion is forthcoming so is the raise.
If the promotion is not possible, a nice raise may be the consolation prize. Politicians use a
variation of this strategy to test receptivity by the public to something they plan to do. Their
planned action is “leaked” by a “reliable source” to test acceptability before final decision is
made. The public’s response is then evaluated. If there is little opposition it is probably safe to
proceed. If there is an adverse reaction, another approach can be explored.
APPARENT WITHDRAWAL:
Apparent withdrawal may include some deception as well as deferring and feinting. It
attempts to make the other negotiator believe you have withdrawn from consideration of an
issue when you really have not. Its purpose may be to ultimately get a concession or change
in position. For example, the prospective buyer of a painting finds the seller unwilling to meet
the price the buyer is prepared to pay. The buyer might say, “I’m sorry but can’t meet your
price. You know my price so unless there is some movement on your part we can’t do
business.” The buyer then leaves. If the buyer has made a realistic offer, the seller may decide
to make a concession. If not, the buyer can always go back with a slightly higher offer. In the
meantime, of course, the buyer can consider other options.
GOOD GUY/BAD GUY:
The good guy/bad guy ploy is an internationally used strategy. One member of anegotiating
team takes a hard line approach while another member is friendly and easy to deal with.
When the bad guy steps out for a few minutes, the good guy offers a deal that under the
circumstances may seem too good to refuse. There are many versions of “bad guys”. They
may be lawyers, spouses, personnel representatives, accountants, tax experts, sales managers,
or economists.
One danger in using this strategy is that it will be recognised for what it is. Here are some
ways to deal with it if you feel it is being used on you.

Walk out.
Use your own bad guy.
Tell them to drop the act and get down to business.
Negotiation Strategies 59
LIMITED AUTHORITY:
Limited authority is an attempt to force acceptance of a position by claiming anything else
would require higher approval. Individuals who claim to have limited authority arc difficult to
negotiate with, because the reason they use to not meet your demands is due to someone else,
or some policy or practice over which they have no control. A salesperson who cannot give
more than a 5% cash discount; influence the delivery date; or accept a trade will not make
concessions in those areas. Some negotiators will concede under these circumstances, while
others will insist their offer be taken wherever necessary for approval or rejection. There is
some risk this will terminate the negotiation, but it does give the other party a chance to
gracefully re-evaluate their position.
Can You Recognise and Define the following?
YES NO
SALAMI _ _
FAIT ACCOMPLI _ _
STANDARD PRACTICE _ _
DEADLINES _ _
FEINTING _ _
APPARENT WITHDRAWAL _ _
GOOD GUY/BAD GUY _ _
LIMITED AUTHORITY _ _
NEGOTIATION: EIGHT CRITICAL MISTAKES
Tick those you intend to avoid:
Inadequate Preparation
Preparation provides a good picture of your options and allows for planned flexibility at the
crunch points.
Ignoring the give/get principle
Each party needs to conclude the negotiation fecl.ing something has been gained.
Use of intimidating behaviour
Research shows the tougher the tactics, the tougher the resistance. Persuasiveness not
dominance makes for a more effective outcome.
Impatience
Give ideas and proposals time to work. Don’t rush things, patience pays.
Loss of temper
Strong negative emotions are a deterrent to developing a cooperative environment, and
creating solutions.
60 Negotiation Strategies
Talking too much and listening too little
“If you love to listen, you will gain knowledge, and if you incline your ear, you will become
wise.”
Arguing instead of influencing
Your position can be best explained by education, not stubbornness.
Ignoring conflict
Conflict is the substance of negotiation. Learn to accept and resolve it, not avoid it.
BEING ASSERTIVE IN NEGOTIATION
What is assertiveness?
Your definition:
What it is?
Assertiveness based on a philosophy of personal responsibility and an awareness of the rights
of other people. Being Assertive means be honest with yourself and others. It means having
the ability to say directly what it is you want, you need or you feel, but not at the expense of
other people.
It means having confidence in yourself and being positive, while at the same time
understanding other people’s points of view. It means being able to behave in a rational and
adult way. Being assertive means being able to negotiate and reach at workable compromises.
Above all, being assertive means having self-respect and respect for other people.
Basically – I AM OK – YOU ARE OK
HONESTY
CONFIDENCE
I’M OK – YOU’RE OK
Assertive Body Language
Use eye to eye contact (sometimes culturally inappropriate)
Hold your body proud but not overbearing.
I may be appropriate to balance your stance – et. Sit if the other person is sitting,
stand if they’re standing.
If you feel “frozen” and don’t know what to do, it may help to walk around, move
your body.
ASSERTIVE AGGRESSIVE PASSIVE
Posture Upright/ Straight Leaning Forward Shrinking
Head Firm not Rigid Chin Jutting Out Head Down
Eyes Direct not starting.
Good and regular eye
Strongly focused starting
often piercing or glaring
Glancing away. Little
eye contact.
Negotiation Strategies 61
contact eye.
Face Expression fits the
words
Set/ Firm Smiling even when
upset.
Voice Well modulated to fit
content
Loud/ Emphatic Hesitant/ Soft, trailing
off at ends of
words/sentences
Arms Hands Relaxed/ Moving
easily
Controlled Extreme/ Sharp
gestures/ Fingers pointing,
Jabbing
Aimless/ Still
Movement
Walking
Measured pace
suitable to action
Slow and heavy or fast
deliberate, hard
Slow and hesitant or fast
and jerky
Becoming Assertive-Work out Your Bottomline
Set a goal – know which things are not negotiable and be clear about them.
Stay firm- don’t let yourself be distracted or “hooked in” by manipulation, anger,
tears, etc.
Be aware of someone else’s feelings and be clear that is how they feel, not a signal
that you are wrong.
Sometimes it may be most important to make your statement.
Be prepared to let both of you come out winners if that is possible
Look for compromise where possible (sometimes it is not).
Winner-Winner is usually better for all than Winner-Loser or Loser-Winner.
MAKE DECISION AND CHOICES ABOUT WHATS HAPPENING
Look at the process
You can choose to initiate, maintain or terminate the conversation.
Be Persistent – Broken Record
Repeat yourself if you need to – if the message doesn’t get through the first time
or if you are being manipulated.
Children are experts in the use of the Broken Record technique and use it very effectively. It
is useful to help make sure that you are listened to and that your message is received.
Sometimes when people are actively involved in their own concern or needs they pay little
attention to what you have to say or to your situation. Broken Record makes sure that your
message does get through without nagging, or whining.
With the Broken Record technique it is important to keep on repeating the message until it
can no longer be ignored or dismissed. It is also important to use some of the same words
over and over again in different sentences. This reinforces the main part of your message and
prevents others raising red herrings or diverting you from your central message.
Example
To insistent customer –
‘We won’t be able to complete by the 15th
. I understand it causes you problems, but the hard
facts are it won’t be possible to complete all the work by the fifteenth. However, we can
62 Negotiation Strategies
promise to finish key areas if you tell us your needs, and we will reschedule the rest. What we
can’t do is complete everything by the 15th.’
Your Examples

(EXERCISE)
QUESTIONAIRE: OPINIONS AND ATTITUDES
Read through the sentences below, and then put a circle around the number which most
closely coincides with your opinion. Before, starting look at the key.
Key

I agree entirely
I agree on the whole
I can’t make up my mind
I disagree on the whole
I disagree entirely
There is no life after death. 1 2 3 4 5
Wars never solve anything. 1 2 3 4 5
We should try to cure criminals, not punish them. 1 2 3 4 5
People suffering from incurable diseases should be painlessly put to death if
they request it.
1 2 3 4 5
Men and women can never be equal. 1 2 3 4 5
It is wrong to pay people so much money for playing sport. 1 2 3 4 5
People should wait until they are at least 24 before getting married. 1 2 3 4 5
People were a lot happier ‘in the old days’ 1 2 3 4 5
There is too much fuss made about nuclear power these days. 1 2 3 4 5
Divorce is wrong. 1 2 3 4 5
Most people keep pets because they are lonely or have difficulty in making
relationships with other people.
1 2 3 4 5
The United Nations is a waste of time and money 1 2 3 4 5
When you have finished, discuss your answers with another participant, remember to give
reasons for your opinion and even to argue with your partner if you disagree with him or her.
NEGOTIATION: THE ART OF NEGOTIATING
Negotiation is the use of knowledge, time and power to influence the behaviour of other
people so that you can achieve your goals. The steps are as follows:
Negotiation Strategies 63

Define needs: what do you and the parties you represent need to get from this
negotiation?
Check resources: What resources do you have to help you with the
negotiation? Who can you use? What are the facts?
Know limitations: At what stage will you have to hand a negotiation over to
someone else? How far is your side prepared to go in conceding to the other
side?
Understand options: List the possible options that could come out of the
negotiation. How many of them are possible for your side to accept?
Formulate goals: Decide what you hope to achieve and the elements of the
goal that cannot be compromised.
Prepare for the encounter: Prepare both mentally and physically.
Preparation
For the other party
Recognise the need: What does he went from the negotiation?
Understand and define that need: How strongly are those needs likely to be
felt?
Check alternatives: What possible alternatives are there? Will he have
thought of them All?
Understand the options: Realise the areas where your opponent cannot afford
to compromise? And the options that can remain open for him.
Know the power of choice: Understand that he is able to choose.
For yourself
Recognise your own need: What do you hope to prove by this negotiation?
Check alternative resources: Are there alternatives that you have rejected
because of your assumptions or attitude?
Define options: Write down your options; keep them all open.
Set goals: Write down your goal and stick to it.
Set limits to goals: How far they can be compromised? Make a careful list of
areas that can be compromised.
Consider the effect of the passage of time: Remember, what was important
yesterday may change in the light of the negotiation.
Consider the time pressures: Set time criteria.
Set cost limits: What are the costs that are acceptable? Do not go above them.
Establish gain to be achieved: Write down what are the anticipated
achievements are to be.
Confrontation or collaboration?
The opposite parties in a negotiation are counterparts. Some negotiators think of their
counterparts as the enemy. To negotiate, the two parties will have to come together, therefore
life is much easier if you think of your counterpart as a friend: attitude determines outcome.
Negative Orientation: The enemy
Opposition
Opposition leads to suspicion
64 Negotiation Strategies
Suspicion leads to aggression
Aggression leads to deadlock
The confrontational mindset:
Counterpart = adversary
Difference = conflict
Resources = weapons
Positive orientation: The friend
Opposition
Opposition leads to cooperation
Cooperation leads to partnership
Partnership leads to settlement
The collaborative mindset
Counterpart = partner \
Difference = opportunities
Resources = incentives to co-operate
How to conduct collaborative negotiation:
The collaborative negotiator must show the following character traits if he has to succeed:
Interest in the needs of the counterpart.
Understanding of the counterpart’s needs.
Willingness to co-operate end compromise.
Mind focused on settlement not obstacles.
Mutual gain = win-win.
As a collaborative negotiator, you will achieve the following gains:
Difference leads to opportunities.
Co-operation leads to trust.
Preparation leads to understanding.
Counterpart becomes partner.
Mutual problem solving brings settlement.
The stages of collaborative negotiation are:
Analyse the needs of the counterpart.
Demonstrate the desire for cooperation.
Emphasise mutual interest.
Demonstrate understanding of counterpart’s needs.
Understand the relationship between counterpart’s needs and own resources and
goals.
Power in negotiation
Bargaining power is measured relative to that of the counterpart.
Bargaining power is determined by external economic and political factors.
It is preferable to negotiate from a powerful position.
The balance of power in a negotiation is determined by the urgency of each side’s
needs and assets.
The power of persuasion
Persuasion gives the negotiator power.
Negotiation Strategies 65
Persuasion is a personal form of power.
Persuasion can be learned and improved.
Persuasion depends on selling ability.
Persuasion depends on positive tone.
Persuasion plays both to economic reasoning and to personal factors.
Assessing the balance of power
How badly do you need what the counterpart has?
How soon must your needs be fulfilled?
What are the consequences should your negotiation break down?
How badly does the counterpart need what you bring to the table?
What are your counterpart’s time restraints?
Are there alternatives to dealing with this counterpart?
Who is in the position of most immediate and greatest need?
Who has the superior position with respect to resources?
How to win
Set sensible expectations
Set high goals.
Use realistic assumptions.
Decide areas open for significant compromise.
Decide areas not open for compromise.
Be clear about what you hope to achieve.
Use the right level you hope to achieve.
Know your limits.
Find out the counterpart’s limits.
Don’t let someone with limited authority wear you down.
Try to bypass negotiators with limited authority.
Share responsibility with those on whose behalf you negotiate.
Go for win-win
Win-win brings together different needs and creates opportunities for mutual gain.
Win-lose make enemies who fight harder next time.
Focus on the goal.
Confine disagreement to ideas.
Avoid personal issues.
Use time with care
Haste makes waste; the best negotiations take time.
Be prepared; negotiate before the crisis.
Over a barrel; urgency may force concessions.
Sleep on it; avoid marathon sessions.
Use questions
Ask them even if you know the answers.
Ask for help.
Listen.
Question what is negotiable; don’t be thrown by ‘company policy’.
66 Negotiation Strategies
Personalise the negotiation
Form bonds of respect and trust.
Remember people as well as things are involved.
Make personal contact, relax, and smile.
Make it matter; show your concern.
Relate to the organisation.
Use time
Allow time for frequent recesses.
Move the bargaining at a deliberate pace.
Use recesses to calm down or research further.
Maintain self-control at all times.
Watch for unspoken needs
Remember your counterpart may have a hidden agenda.
Watch the body language.
Stay awake.
Meet your counterpart’s needs.
Remember personal and social needs can often be met at minimum expense.
Finally:
Aim to control the situation.
Believe in yourself.
Keep written records for the future.
Trouble -shooting
The likely needs or wants of your counterpart
To feel good about himself.
To avoid further trouble and risk.
To be recognised as a man of good judgement.
Knowledge.
An easy life.
To be listened to.
To keep his job.
Promotion.
To save time.
To be liked.
Power.
How to break an impasse
Sometimes you his situation when nothing seem possible. No one is willing to give way. The
only way out is changing.
Change:
The shape of the package;
A member of the team;
The Time limits on the part of negotiation;
The risk mix;
The time scale of per performance;
The bargaining emphasis;
Negotiation Strategies 67
The type of contract;
The base for a percentage.
Call a mediator.
Arrange summit meeting.
Add options.
Setup a joint study committee.
Tell a joke.
How to make concessions
Leave you self room to negotiate.
Encourage the counterpart to open up first.
Let the counterpart make the first concession.
Make him work for his gains.
Conserve Concessions.
Don’t give tit-for-tat concessions.
A promise is a concession at a discount rate.
Don’t be afraid to say ‘no’.
Keep track of your concessions.
Retreat from a concession if you have made a mistake.
Don’t give in too much too quickly.
Difficult counterparts
The majority of counterparts are polite and friendly and easy to deal with; it is only the
occasional one that is difficult. Sometimes he has justification, while at other times he is
someone who seems to enjoy being difficult.
To deal with the difficult, you need to hold on to the following – facts:
People demonstrate their frustration in many ways; most of the difficult behaviour
you hear is a direct result of frustration. They are all nice people underneath.
Anxiety can have a strange effect on personality.
Whatever the person says, it is not a personal insult or intended as such. Do not take
personal offence.
One temper lost is bad enough, to lose yours as well is will not improve matters.
Only the facts matter at the end of the day; hold out for the facts.
Taking a deep breath before you speak or react, gives you time to think. Thinking
before you speak or react saves a lot of talking time later.
Complainers
Complaints fall into two categories: the just and unjust. Until you know the facts, you will not
know which sort of complaint you are dealing with.
The technique
Take a deep breath.
Keep your voice up and friendly.
Listen to what is being said and take notes.
Do not interrupt; let the speaker get it all off his chest.
68 Negotiation Strategies
Check the validity of complaints about the past.
Sympathise without being disloyal.
If the company is at fault, apologise.
Never give excuse, it always seems lame.
If you promise to do something, do it.
Never say:
I’m not the person to talk to about… (Even if it is true, it won’t solve any problems.)
It’s not my fault. (It probably isn’t, but just saying so won’t help anyone.)
I didn’t handle this. (See above.)
We are having lots of problems with… (It doesn’t help your caller, but it does harm
the organisation.)
Never:
interrupt the complainer, he will only start all over again;
automatically accept responsibility or liability, as that may not be the case.
jump to conclusions before gathering all the facts.
talk down to your complainer, or accuse him of misuse – it may be be true, but it will
not smooth ruffled feathers;
lose your temper;
appeal for sympathy by trying to Justify your position – It will sound like a lame
exercise.
Aggression
Aggression is a symptom of both anxiety and frustration. It is the by-product of someone who
has failed at a talk or feels insecure. Do not confuse it with assertion.
The technique
Take a deep breath.
Speak calmly and evenly on a middle pitch.
Keep your temper.
Do not respond with aggression.
Ask for the facts and check your understanding of them.
Say something like ‘I’m sorry this is causing you a problem, but I can only help if
you let me’ (empathetic assertion).
Encourage your counterpart to talk out his feelings of aggression. (The longer he goes
on talking, the less aggressive he will become.)
Be assertive and point out politely the consequences of continued aggressive
reactions.
If you cannot calm your counterpart, arrange a break.
Vagueness
Negotiating with a vague counterpart is very difficult. He will go on for a long time and say
very little. You must be patient at all times and try to steer him back to the point.
Negotiation Strategies 69
The technique
Maintain your patience.
Write down all the facts as you hear them.
Use the facts to guide your counterpart back to the point from time to time.
Keep a smile in your voice.
Be businesslike.
Don’t allow yourself to be dragged down red herring-strewn by ways.
Keep to the point yourself.
Keep your temper.
Don’t be abrupt.
Summarise regularly.
Unfriendly
Some individuals are not particularly fond of people in general. They are not likely to be very
friendly when negotiating. Other people confuse being businesslike with unfriendliness. An
apparent unfriendly attitude may be a symptom of anxiety or frustration. Either way, do not
take it personally; it is not intended personally.
The technique
Smile as you speak.
Take nothing personally.
Keep your voice up and pleasant.
Deal with the points as quickly as possible.
Don’t makes personal remarks.
Get the facts and stick to them.
Once the negotiation is over and the matter dealt with, forget your counterpart.
The Seven Elements of Negotiation

ALTERNATIVES. These are the walk away alternatives which each party has if
agreement is not reached. These are things that one party or another can do by selfhelp, without requiring the agreement of the other. In general, neither party should
agree to something that is worse for that party than its “BATNA” – its Best
Alternative Agreement.
INTERESTS. This is the word we use for what it is that somebody wants.
Underlying the positions of the parties are their needs, their concern, their desires,
their hopes and their fears. Other things being equal, an agreement is better to the
extent that it meets the interests of the parties.
OPTIONS. We use this word to identify the full range of possibilities on which the
parties might conceivably reach agreement. We refer to options “on the table” or
which might be put on the table. “We might decide that you get the orange, that I get
it, that we cut it in half, or we might decide that I can have the peel for baking and
that you can have the fruit to eat. They are all options. We have not yet decided.”
Generally speaking, an agreement is better if it is the best of many options:- if it could
not be better for one party without being worse for another.
LEGITIMACY. Other things being equal, an agreement is better to the extent that
each party considers it to be fair as measured by some external benchmark; some
criterion or principle beyond the simple will of either party. Such external standards
of fairness include international law, precedent, practice, or some principle such as
reciprocity and most-favoured- nation treatment.
RELATIONSHIP. A negotiation has produced a better outcome to the extent that
the parties have improved their ability to work together rather than damaged it. Most
important negotiations are with people or institutions with whom we have negotiated
before and will be negotiating again. Whatever else a relationship may involve, one
crucial aspect is an ability to deal well with differences. One dimension of the quality
of a negotiated outcome is the quality of the resulting working relationship: Are the
parties better or worse able to deal with future differences? (Each element represents
something desirable in a good outcome. There are likely to be trade-offs among them.
Doing better on one may mean doing worse on another.)
COMMUNICATION. Other things being equal, an outcome will be better if it is
reached efficiently without waste of time or effort. Efficient negotiation requires
effective two-way communication.
COMMITMENTS. Commitments are oral or written statements about what a party
will or won’t do. They may be made during the course of a negotiation or may be
embodied in an agreement reached at the end of the negotiation. In general, an
agreement will be better to the extent that the promises made have been well planned
and well-crafted so that they will be practical, durable,, easily understood by those
who are to carry them out, and verifiable if that is important.
The Seven Elements of Negotiation 71
The 7 Elements as a Checklist for Preparation
Alternatives
✓ What’s our BATNA? What’s theirs?
✓ Can we improve ours? Worsen theirs?
Interests
✓ What are ours? What are theirs?
✓ Are there other parties to consider?
✓ Which interests are shared, which are just different, and which conflict?
Options
✓ What are some possible agreements that might creatively satisfy both our
interests?
Criteria (Legitimacy)
✓ What standards might international law suggests?
✓ What “ought” to govern an agreement?
✓ How can they justify the outcome to their constituents?
Commitments
✓ What is our authority? Theirs?
✓ What kind of commitment do we want at each stage of the negotiation
process?
✓ Process agreement?
✓ Framework? Tentative? Final?
✓ What might a framework for an agreement look like?
Relationship
✓ What kind would we like to have?
✓ How can we improve the relationship without conceding on the substance?
Communication
✓ What information do we want to listen for?
✓ How can we show them they have been heard?
✓ What messages do we want left in their heads?
✓ What is our process strategy? What might we say to start off?
Concept & Techniques of Mediation
Course Material Designed by
Delhi Mediation Centre for Training Programme in Mediation
“…..both were happy with the result, and both rose in public estimation…. I realized that the
true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt
into me that a large part of my time during the twenty years of my practice as a lawyer was
occupied in bringing out private compromises of hundreds of cases. I lost nothing thereby –
not even money; certainly not my soul.”
Mahatma Gandhi
Why Mediation?
The concept of mediation is ancient and deep rooted in our country. In olden days, disputes
used to be resolved in a panchayat at the community level. Panches used to be called Panch
Parmeshwar. Now we have grown into a country of 125 crore people. With liberalization,
globalization and tremendous economic growth there is an explosion of litigation in our
country. Though our judicial system is one of the best in the world and is highly respected,
but there is still a lot of criticism on account of long delays in the resolution of disputes in the
courts of law. A point has now been reached when even an honest litigant is wary of
approaching the court for a decision of his dispute. Hence, we have turned to alternative
forms of dispute resolution.
We tried the system of Lok Adalats and gave statutory recognition to it through the Legal
Services Authority Act, 1987. But, it is only a miniscule amount of litigation that has gone to
the Lok Adalats, and even those cases are mainly compensation cases, house tax matters or
small recovery disputes of big companies where only arithmetic calculations are to be made
and there is hardly any dispute about the question of liability. The Arbitration & Conciliation
Act, 1996 replaced the Arbitration Act, 1940 but even that has been unable to contain
litigation. This is because disputes can go to arbitration only if there is an arbitration
agreement between the parties; and experience has shown that in a very large percentage of
cases, the aggrieved party files objections to the award, and that sometimes takes several
years for disposal.
The legislature, by the Code of Civil Procedure (Amendment) Act, 1999, amended Section 89
of the CPC with effect from 1.7.2002 whereby mediation and judicial settlement were
envisaged as modes of settlement of disputes. The amendment in Section 89 was made on the
recommendation of the Law Commission of India and the Malimath Committee. It was
suggested by the Law Commission that the court may require a party to a suit or proceeding
to appear in person with a view to arrive at an amicable settlement of the dispute between the
parties and make an attempt to amicably settle the dispute between them. It is now obligatory
for the court after framing the issues to refer the dispute for settlement either by way of
Concept & Techniques of Mediation 73
arbitration, conciliation, mediation or judicial settlement. It is only when the parties fail to
get their dispute settled through any of the alternative dispute resolution methods that a suit
could proceed further. Thus, Section 89 has been introduced to promote alternative methods
of dispute resolution.
In fact mediation is widely used as an alternative to litigation for quick resolution of disputes
in USA, European countries and in Australia, particularly in commercial and matrimonial
disputes.
Mediation started in USA in the late 1970’s. Labour relations mediation began much earlier,
which was limited to collective bargaining. Mediation became very popular in USA and
European countries in 1990’s. In our neighbouring countries like Pakistan, Bangladesh and
Sri Lanka, mediation started earlier than in India. In Ahmedabad, a trust called Amlead was
formed and registered by lawyers who opened a Mediation Centre on 27.7.2002. A Mediation
Centre was established in Madras High Court in April, 2005. In Delhi, we started mediation
only in August, 2005. Hon’ble Mr. Justice Y.K. Sabharwal, then Judge of the Supreme
Court ( former Hon’ble Chief Justice of India) formally inaugurated the Mediation Centre at
Tis Hazari Court, Delhi on 24.10.2005. Since then, our results have been so very encouraging
that another Mediation Centre was formally inaugurated on 5.5.2006 in Karkardooma Courts
complex. As on 05.12.2007 as many as 5009 cases have been referred to the Mediation
Centre at Tis Hazari and 2602 cases have been referred to the Mediation Centre at
Karkardooma. The number of settled cases (including connected cases) is about 5782.
What is Mediation?
In the adversarial system, a litigant becomes insignificant, almost a non-entity. He is a mute
spectator to the legal battle fought on his or her behalf, sometimes on grounds that are too
technical.
Mediation is a negotiation process in which a neutral third party assists the disputing parties
in resolving their disputes. A Mediator uses special negotiation and communication
techniques to help the parties to come to a settlement. The parties can appoint a Mediator
with their mutual consent or the Court, in a pending litigation, can appoint a Mediator.
Mediation always leaves the decision making power with the parties. The Mediator does not
decide what is fair or right, does not apportion blame, nor renders any opinion on the merits
or chances of success if the case is litigated. Rather the Mediator acts as a catalyst to bring the
two disputing parties together by defining issues and limiting obstacles to communication and
settlement.
Why Do We Need Mediation?
We need mediation because it is a good method of resolving certain kinds of disputes
especially those involving relationships. Relationships can be personal, business, contractual
or social. These disputes are not easily resolved with the litigation process.
What are the Problems with Litigation?
It is expensive, has huge delays, aggravates the tension and fighting between parties,
workable solutions are not arrived at and the dispute does not end with the verdict.
74 Concept & Techniques of Mediation
Is Mediation Used? Is it Working?
(a) Mediation is extensively used abroad especially in the United States of America, England,
Europe, Australia, Singapore and Hong Kong amongst other countries.
(b) It is applied in a range of disputes from small causes and community disputes to business
and contractual matters, from family matters to complex high value commercial disputes.
(c) The Success rate of mediation is high – the estimates of the percentage of cases in which it
has worked ranges from 50% to 80%. Considering that a successful mediation is one where
both parties are satisfied with the result that is surely a high figure.
(d) It is now becoming standard procedure for a mediation clause to be inserted in the dispute
resolution section of agreements as a first try method before arbitration or litigation.
What are the Risks of Mediation?
(a) One of the risks is that it can be used to find out confidential information from the other
side. For this reason the requirements of confidentiality must be strongly stressed and
protected. Parties must be cautioned against revealing confidential information in joint
sessions. As regards communication with the mediator, wherever the confidential nature of
information needs to be maintained, the mediator must be clearly told so.
(b) When there is severe imbalance in the negotiating strength between the parties that may be
reflected in the agreement. For this reason, there is a caution against mediating cases where
such imbalance is present.
(c) An unethical mediator could abuse the position of trust and collude with one party to
deprive the other. Just like any other office of trust, this too can be abused. However, in the
case of mediation, a party can withdraw from it any time without adverse consequences. That
is not possible in the case of a Judge or arbitrator. Secondly, parties are advised to attend the
mediation with their lawyers who can protect their interests.
In some jurisdictions (notably in US), Codes of conduct and ethics have been drawn up for
mediators, as also a certification procedure. This will provide for disciplinary action like
withdrawal of certification. Fourthly, a mediator who is suspect on integrity will not get much
business. The most important aspect here is that mediators should be drawn from those who
possess integrity and credibility.
How Mediation is Different from Litigation and Arbitration
a) In litigation, the Judge decides the issue and parties are bound by the decision subject to
the right of appeal/revision etc. In mediation, the parties themselves take the decision to
find a solution to end the dispute.
b) In litigation the focus is usually on the past and on determining liability. In mediation the
focus is on the future and improving the situation to the extent possible.
c) Litigative proceedings tend to the contentious and procedural and do not yield quick
results. Mediation stresses co-operation and is solution oriented.
d) Arbitration proceedings are also adversarial in nature, like litigation. The difference is
that parties can choose their arbitrators and the setting can be less formal. Arbitrators also
give awards in favour of one party and against the other.
e) Mediation avoids the win-lose equation and instead tries to achieve a win-win solution,
Concept & Techniques of Mediation 75
which puts an end to the dispute.
Comparison of Mediation and Lok Adalat
Forum [where it takes place]
Mediation takes place in a private conference room. Only the parties, their advocates or other
persons helping them or accompanying them or involved in the mediation process are present.
Lok Adalat usually takes place in court premises when numerous cases referred to Lok Adalat
are listed before different conciliators. Often more than 25 cases are placed before each
group of conciliators. Lok Adalat proceedings are held in public, in the presence of all
persons assembled to attempt to settle their cases.
Morphology [Structure] of the process.
Mediation is a structured process featuring introductory comments by the mediator, [a]
detailed exchange of information in a joint session, a series of separate and private meetings
with the parties and an agreement stage.
In Lok Adalat, it is customary for the conciliators to talk with the parties, with their advocates
present, to help persuade the parties to settle their case. The exchange of information is
limited. The discussion of possible terms, likewise, is limited. If conciliators talk with any
party privately, it is generally only once, due to time constrains.
Who controls the Process?
In mediation the mediator controls the process by following the stages of mediation process
and deciding the order or presentation, the length of presentation, setting the agenda, etc. In
Lok Adalat, the conciliators determine how the process will be handled, which party speaks
and when.
Who selects the neutral third party?
In mediation, generally the parties decide who will serve as the mediator.
In Lok Adalat, the parties do not have any role in deciding who the conciliators will be. The
parties appear before those conciliators to whom their case is assigned. The parties do not
have the freedom to select conciliators of their own choice.
Time spent in the process.
In mediation, parties are afforded reasonable time to negotiate the agreement. This may
involve a number of hours or days. Mediation may take place over a course of time to
accommodate the parties and the complexities of a dispute.
In Lok Adalat, there are usually strict time constraints. The agreement has to be reached in
fixed amount of time as the tenure of the conciliators is only for the given day. If there is no
settlement on that day, the case proceeds to trial. There is no continuity and follow up by the
conciliators.
Who controls the outcome?
In mediation, the parties control the outcome and work together in arriving at a settlement
with the assistance of the mediator.
In Lok Adalat, the parties may usually agree to disagree with a settlement proposed by
76 Concept & Techniques of Mediation
conciliators. However, experience reveals that, in practice, conciliators and advocates of the
parties try to persuade the parties to settle.
How is a dispute referred to mediation? Who pays for the expenses?
In mediation, reference to mediation is made by court order, by consent of the parties, or
pursuant to a contract clause, etc. The parties pay for mediation or the court pays for
mediation, if the programme provides funds.
In Lok Adalat, reference is made mostly by consent of the parties or their advocates.
Sometimes, a case placed before Lok Adalat by a court order. Parties may opt to appear or
not to appear. Parties do not pay for Lok Adalat expenses. Conciliators are free volunteers.
Arrangements or organisational expenses are mostly made and funded by Legal Service
Authorities.
Confidentiality
Mediation is a private process. Without consent of the parties, neither the parties nor the
mediator can disclose the statements made during mediation, or documents prepared for
mediation, such as mediation work.
In Lok Adalat, the process is generally not private. It takes place openly and in presence of
all others who have assembled for their respective cases.
Depth of Analysis.
In mediation, the factual and legal analysis is detailed and in depth.
Due to time constrains, conciliators in Lok Adalat are rarely able to engage in an extensive
discussion of a claim [ e.g., the precise nature of the claim, the factual background and
damages and possible settlement terms]
Types of disputes resolved.
In Mediation, all types of disputes, including commercial disputes, contract disputes personal
injury claims, real estate, probate etc., can be negotiated and resolved.
In Lok Adalat, mainly motor accident claims and insurance claims are tackled. Commercial
and other disputes which require creative solutions are rarely referred to Lok Adalat.
Role of a neutral.
In mediation, the neutral persons works in partnership with the parties to assist them in
finding a solution that meets with their needs, interests, priorities, future relationship, etc.
In Lok Adalat, conciliators attempt to persuade the parties to settle their case. There is no
attempt to work together with the parties solutions that meet with the parties’ individual
needs, interests, priorities, future relationship etc.
Role of the parties.
In Mediation, parties play an active role in presenting factual background, discussing
positions, developing offers and counter offers, making decisions , etc.
Parties play no active role in Lok Adalat. They play no active role in presenting information,
identifying interests, making offers of settlement, responding to offers of settlement and
Concept & Techniques of Mediation 77
shaping the terms of settlement.
Role of Advocates.
In mediation, advocates play an active role, presenting the case, discussing positions,
developing offers and counter offers, and advising clients regarding terms of settlement.
In Lok Adalat, advocates play a part in advising their clients to settle if they consider it
advisable to settle.
Range of Possible Outcomes.
In mediation, parties are not bound by traditional legal remedies. Highly creative, innovative
and nontraditional solutions are possible. In addition, it is possible to build future relationship
by re-writing contracts, re-structuring relationship, etc.
Usually, in Lok Adalat the case is reduce to monetary damages. Imaginative solutions
involving non-monetary or non-traditional remedies are not usually considered.
Stages of Mediation
INTRODUCTION
A Mediator introduces himself and the parties and explains the process of mediation. For
instance where an Advocate is assisting a party and he/she has also brought some of his/her
relations for the negotiation, the Mediator has to explain the role, which can be played by the
Advocate and the relation/friend who has been brought in by the party. The Mediator must
dispel the doubts in the mind of any of the party that a lawyer or a relation cannot participate
in the mediation.
(i) Establish Neutrality: It is very important for the Mediator to exhibit his neutrality to the
parties and the dispute. This can be done by very carefully using appropriate words, body
language and making appropriate eye contact that shows equal treatment to the parties. A
Mediator should sit squarely and by his conduct should not show any preference to one or the
other side of the table undue eye contact to be avoided. A Mediator should avoid wishing the
disputing parties or their Advocates in the waiting area before the first meeting, even if either
of the parties is known to him or her because this may give a wrong signal to the opposite
party. Of course, the Mediator must disclose any previous contact with any particular party
but that can be done while explaining the process of mediation. A Mediator must always
avoid calling a party by the first name because the opposite party may misconstrue it.
A Mediator should prefer to use neutral terms. For example, in a suit for breach of contract
for supply of certain goods, the Mediator can describe it as a dispute with regard to a contract
for supply of said goods instead of a case of breach of contract. Similarly, a suit for damages
can be better described as a suit for compensation.
A Mediator should also show neutrality with regard to the date, venue and timing of
mediation. If a Mediator asks for the convenient date from one of the parties, the other party
may misconstrue it. Therefore, a Mediator can fix a date either as per his own diary, subject
to the convenience of the parties, or can ask both the parties simultaneously to suggest a date
and time which may be convenient to both of them.
(ii) Describe the Role of a Mediator: A Mediator must tell the parties that his role is simply
78 Concept & Techniques of Mediation
to assist them to come to a settlement which may be acceptable to all of them. Thus, his role
is only facilitative and is not to decide the dispute between the parties. He should avoid early
evaluation of the dispute even if requested by either of the parties by telling them that he is
yet to get the complete information.
(iii) Address Confidentiality: A Mediator must explain to the parties/participants that the
mediation proceedings are confidential so that they may feel more comfortable in giving their
options towards resolution of dispute. A Mediator can draw the attention of the parties to the
statute or the rules or the agreement whereby the proceedings are confidential. A Mediator
should also tell the parties that they can disclose any confidential information during a caucus
(private meeting) to be kept secret by the Mediator from the opposite party for coming to a
settlement which may be acceptable to all the parties.
(iv) Establish a Conducive Environment and Control over the Process: A Mediator
should be calm and relaxed during the mediation. He should be in complete control of the
proceedings and should diplomatically handle any interruption without giving an indication to
any party that he/she is not being given adequate attention.
While a Mediator is delivering the introduction or if one of the parties is presenting his or her
point of view and the other party interrupts, a Mediator can request the said party to make a
note of the point and that he (the Mediator) would be getting back to him in just a short while.
(v) Generate a Momentum Towards an Agreement: A Mediator should develop a positive
frame of mind in the parties by expressing hope that if we work on the dispute, we may be
able to come to a settlement which we would normally come to through hard work.
(vi) Ground Rules: Take an assurance that each and every party has to respect each other
during the proceedings. One party shall not interrupt the other in the proceedings.
(vii) Determine whether the Mediation Process has been Understood: Enquire from the
parties if they have any question or any doubt about the mediation process.
JOINT SESSION
Mediator’s Goals
 Gather information about factual background.
 Learn about parties’ claims, defence, arguments and positions.
 Gather information about parties’ underlying interests.
 Manage interaction between parties.
 Maintain environment that is conducive to constructive negotiations.
 Elicit information by k each party if he / she has got any other point.
 Allow parties to give full information of facts
 Joint session to be done coolly and not to rush through – because both the parties will
come to know of the stand of the respective parties in full view and this will enable
the Mediator during negotiation in a separate session.
 Remain neutral – Do not give any idea to any party about the merits and demerits of a
case.
Mediator’s Dos & Donts
Concept & Techniques of Mediation 79

Active listening – A good Mediator is a very active listener.
Ask questions that bring out desired information (open-ended, clarifying closed questions that
bring out underlying interests, fact-based questions, etc.)
Manage outbursts and interruptions with acknowledgment. Acknowledge the point of feeling.
Don’t jump to conclusion.
Don’t rush to find a solution.
Understand that, for most people, their perceptions equal their reality. To them, their
perception is a fact.
Understand that two people can perceive a situation differently and they can both be right.
Let go of your desire to talk.
Be careful in note taking.
Be mindful of your body language and the speaker’s body language.
Minimize interruptions.

CAUCUS or SEPARATE SESSION
Purpose: In caucus parties get the chance to vent out their charged up feelings and emotions.
A Mediator should not talk negative about any party. It often happens that a novice mediator
starts taking sides and has sympathy with the parties, which is not conducive to the mediation
process and ultimately embarrasses the Mediator.

A Mediator explains confidentiality to the extent requested. Parties may discuss confidential
information and issues.
Gather information by asking more questions – Number of separate sessions will depend from
case to case.
Parties are encouraged to invent settlement options.
Possibility to settle the case to be enquired from the parties.
Strong on facts, soft on parties. (For example in a compensation case, a Mediator can ask the
question “Do you have the medical bills?” (Defendant has raised the question of an
exaggerated bill)“Do you have any other document” (Never tell a party that he cannot be
believed and that if he had received the treatment he must be in possession of the bills or
documents)
Agreement:
Orally confirm a settlement in a separate session with the parties.
Write down the terms of the settlement.
Confirm the settlement in a joint session with both the parties.
Who can draft agreement, parties, their Advocates or the Mediators?
To be signed by the parties.
Terms of Agreement – Clear, complete, concise, specific (give date) preferably in active
voice.
Closing Comments:
It has been noticed that whenever the parties take an adjournment to draft the agreement as
80 Concept & Techniques of Mediation
per the terms settled during mediation, there has been a rethinking on the part of one or the
other party to gain some more advantage. Experience has also shown that in some cases the
agreement has failed. Even if an adjournment has to be granted, it should be preferably
scheduled on the next day or in a couple of days – try to draft the agreement yourself but at
the same time make sure about the provisions of law.
Approaches to Negotiations
There are two types of approaches to negotiations, that is, competitive and cooperative. A
competitive negotiator may be aggressive, hostile, uncompromising while a cooperative
negotiator may be accommodating, straightforward and courteous. A good negotiator mixes
these approaches according to the circumstances of the negotiations. If a negotiator is too
docile, he may not get a good bargain.
Types of Bargaining Used in Mediation
(i) Rights-based Bargaining: It is a customary and traditional form of bargaining in which
the parties’ primary focus is on right and wrong (for example, who violated the statute, who
breached the contract, who was negligent). It is blame- oriented analysis.
(ii) Positional Bargaining: It is also a customary and traditional form of bargaining, in
which the parties focus on their legal positions and offer to settle. It is often combined with
right based bargaining (for example my client’s claim is worth Rs.1 lakh as your client was
100% at fault for injuries).
(iii) Distributive Bargaining: This type of bargaining focuses on the allocation of fixed or
limited resources between the parties. It is often referred to as “dividing the pie”, where the
“pie” represents a fixed amount of money, property, assets, etc. (For example, the assets of an
estate). Distributive bargaining is also referred to as “zero sum” bargaining, because for each
amount of resources received by one party, the other party loses the same amount. (Suit for
partition, petition for grant of probate of Will, suit for dissolution of partnership and rendition
of accounts etc. would come under distributive bargaining).
(iv) Integrative Bargaining: In this type of bargaining, a Mediator expands the resources
that are the subject of negotiations by introducing the possibility of traditional additional
resources that are outside the framework of initial negotiations. (For example, 18th camel,
that is 1/2, 1/3rd and 1/9th of the camels).
(v) Interest-based Bargaining: In interest based bargaining, the focus shifts from law to the
facts and underlying interests of the parties to develop terms of settlement that produce
mutual gains (for example division of orange). It is a three-step process in which a Mediator
(a) identifies the underlying interests of the parties, (b) prioritizes their interests (using
information generated from the parties), and (c) develops settlement terms that promote the
most important interests of the parties.
Interest based versus Right based Bargaining
A commercial mediation or even compensation mediation normally starts on the basis of
right-based mediation. Like the plaintiff may have filed a suit for recovery of damages
amounting to Rs. 1 lakh but he may be ready to accept Rs. 50,000/- as a settlement. The
right-based bargainer may sometimes bring the mediation to an impasse and the Mediator
must cleverly move towards interest based bargaining in order to save mediation.
Concept & Techniques of Mediation 81
Communication Technique Used in Mediation
Restatement: Restatement is a communication tool used frequently by the mediators to ensure
that the mediator has accurately heard their statements. As the name suggests, restatement
consists or mediators repeating of a party’s point(s), at times using same or similar words as
the party. This technique gives the party confidence that the mediator has accurately heard
the party and noted the party’s point. Restatement usually focuses on statement made by a
party about facts, law and position.
Example :
Party : “I am not at fault because I delivered the product on time on June 16, 2006”
Mediator : Your position is that you are not liable because you carried out the terms of
agreement by delivering the product on June 16, 2006.
Reflection: Reflection is a communication technique that is similar to restatement, except that
reflection involves a mediator repeating of a party’s statement about thoughts, feeling and
emotions.
Example
Party : “I am frustrated because the other party delayed payment of the money I gave to him.”
Mediator: “If I am hearing your correctly, you are frustrated about the timing of payment.”
Summarizing: “Summarizing” is a technique used by a Mediator to briefly, clearly, and
accurately re-state the essence of statements by a party or advocate regarding issues,
positions, or proposed terms of settlement.
In summarizing, a Mediator must be careful to:
Be accurate
Be brief
Re-state the issues, positions, or terms in words that are neutral
Be complete
Neutral Re-Framing: Neutral re-framing is the restatement by a Mediator, in neutral words,
of a comment or position expressed by a party or his or her advocate. Using neutral reframing, a Mediator attempts to extract the essential content of a statement, leaving out
inflammatory or highly charged words. The Mediator’s restatement is usually made for the
purpose of re-phrasing the comment in terms that are clear and inoffensive. Neutral reframing also may be used to focus the parties’ attention on a particular aspect of the statement
or position offered by a party.
Neutral re-framing may be used in a variety of situations:
When a party or advocate makes a statement that is highly adversarial
When a party or advocate uses words that are inflammatory
When a party or advocate engages in a personal attack on another person
For instance, in a suit for recovery of Rs. 10 lakhs, the defendant may say in a caucus that he
shall not pay a penny over and above Rs. 5 lakhs and he can see the plaintiff in Court. A
Mediator can reframe the offer by removing the word “not a penny” and “over and above”
and that “he can see the plaintiff in Court”.
82 Concept & Techniques of Mediation
Re-Directing: “Re-directing is a communication technique used by a Mediator to shift the
focus of a party from one subject to another. Re-directing may be used to:
Focus on details.
Re-focus on general issues, party expectations or goals.
Respond to a hostile, inflammatory, or highly adversarial statement by a party or attorney.
Setting an Agenda: “Setting an agenda” is a communication technique used by a mediator to
establish the order in which issues, positions, claims, defences, or proposed settlement terms
will be addressed. Setting an agenda may be used to :
Organize information.
Determine the priority and relative importance of issues to a party.
Deferring: “Deferring” is a communication technique used by a Mediator to postpone a
response to a question or statement by a party. It may be used in the following situations:
Where a party or his or her advocate requests a premature evaluation. (It is too early, yet to
get full facts).
To follow an agenda established by the Mediator.
To gather additional information.
To de-fuse hostile, inflammatory, or highly adversarial statement.
To break an impasse.
Acknowledgment: “Acknowledgment” is a communication technique used by a Mediator to
reflect back a person’s statement or position, in a manner that recognizes the perspective of
the party who expressed the statement or position. One purpose of acknowledgment is to
convey that the Mediator has accurately heard and understood the statement/position. Another
purpose of acknowledgment is to convey that the Mediator understands the importance of the
statement/position of the party.
Empathy without Reinforcement: Often, it is a Mediator’s responsibility to express
understanding and empathy, without expressing agreement or disagreement with a party.
Words and phrases that express empathy without reinforcement include;
I understand your position.
I see what you are saying.
I hear your point.
Words and phrases that, if used improperly or over-used, may lead a party to believe a
Mediator agrees with him / her include:
Yes
Okay
Uh-huh
Silence (for example, after a party says, “Anybody would do the same thing under the
circumstances”)
In addition, certain gestures and body movements may convey agreement, including nodding
the head up and down.
Finally, passive information gathering by a Mediator may convey the impression to the
Concept & Techniques of Mediation 83
speaker that the Mediator agrees with the party’s comments (for example, allowing another
person to have complete control of the agenda, scope, and degree of detail when relating
factual background and positions).
Use of Apology in Mediation
Sometimes apology plays a very important role in resolution of a dispute between two
warring parties A plaintiff may be hurt on account of an unreasonable conduct of the
defendant taking the matter to the Court. The Mediator, therefore, has to use his/her intuition
to find out if it would be helpful if one or both sides make an apology. The timing and
sincerity of apology is crucial.
For instance, in a suit for damages in a motor vehicle accident or in a criminal case under
Section 279/338 IPC, the plaintiff may be having a grievance that the defendant had fled the
spot after the accident and had not even cared to take him to the hospital. The apology in
addition to some compensation may prove very vital in settlement of the dispute.
An insincere apology, however, is worse than none at all. As a practical matter a mediator
should never suggest an apology to the plaintiff without having already confirmed with the
defendant that one is available and would be made if the plaintiff is happy.
Disputes where Mediation is Appropriate
Parties desire a negotiated outcome
Parties have an on-going relationship (family, business, other)
Merits of case make a favourable judgment unlikely
Litigant does not want to appear as a witness
Costs of trial exceeds projected value of the case
Parties want prompt resolution
Parties want control over the outcome
Opportunity to develop creative non-traditional remedies.
Confidentiality/Privacy is desired by the parties.
Disputes where Mediation is not Appropriate
Parties refuse to negotiate
Parties want a judicial determination
Parties want public airing of the dispute
Parties want to establish legal precedent
Delay in resolution benefits party
Parties do not have sufficient information.
Where an order of Court is necessary to enforce a right.
Serious criminal offences.
Cases which are prohibited from being settled through ADR, such as tax disputes.
Types of Disputes which can be Referred for Mediation
Family Disputes (divorce, custody, visitation)
Commercial disputes
Dispute between neighbors (boundary disputes, noise, animal control)
84 Concept & Techniques of Mediation
MACT/Insurance claim
Copyright, Trademark disputes
Billing disputes with public sector companies
Why Should Business Community Consider Mediation?
Mediation is very effective when there is a question of reputation of a big company involved
in any dispute. For instance, there may be presence of some foreign substance in a bottle of
soft drink. The soft drink company in order to avoid any adverse publicity would never like
the dispute to go to the court and would try to settle the dispute to control rumors about the
product.
A dispute between the employees and a business house and between a contractor and the
business house are also best settled in mediation in order to avoid disruption in the
work/business and in order to maintain the continuing relationship.
Stage at which Mediation can be Tried
Mediation can be tried before trial, during trial or even during pendency of the appeal.
Mediation viz-a-viz Traditional Litigation
There is no conflict between mediation and court trial. Some cases need to be litigated
whereas other needs to be mediated. Thus, mediation is complimentary to the court
proceedings and is not opposite to the Court proceedings. That is why Section 89 gives
mediation as one of the methods for the resolution of a dispute in cases instituted in the Court.
Choice of Mediator
As per Mediation and Conciliation Rules framed by the Delhi High Court, retired Judges of
the Supreme Court of India, retired Judges of Delhi Court, retired Judges of Delhi Higher
Judicial Service, Serving officers of Delhi Higher Judicial Service, a Legal Practitioner with
at least 10 years service at the bar, experts or professional with at least 15 years of standing
are eligible to be empaneled as Mediators in a court annexed mediation. Otherwise, the
parties can decide and choose any person to mediate any dispute between them which has not
gone to the court.
Brainstorming: “Brainstorming” in mediation process involves the following:
Inventing / Generating Options for an agreement.
Evaluating Options for an agreement.
Identifying the issues for resolution
Focusing party on their long term interest.
Getting parties to be realistic about their case especially its weakness
Making them examine their alternatives to settlements.
Giving them freedom to create options for settlement.
Refining their suggestions and reaching agreement.
Lateral Thinking: “Lateral thinking” is a type of thinking that is creative, innovative, and
Concept & Techniques of Mediation 85
intuitive. Lateral thinking is non-linear and non-traditional. Mediators use lateral thinking
during the brainstorming process to develop terms of agreement that further the interests of
the parties. Lateral thinking is often contrasted with logical thinking, which also plays an
important role in mediation. Logical thinking is linear, traditional, rational, and fact-based.
Mediators use logical thinking to analyze facts, to assess liability, and to understand the
positions of the parties.
Impasse or Dead Lock: This occurs due to following reasons:
Ultimate acknowledgment of failure
Failure of participants to reach an Agreement.
Steps which can be taken by Mediator
Alert the participants
Inform parties/Lawyers in caucus meetings
Solicit any ‘last ditch’ efforts.
Talk with lawyers apart from their clients
Brainstorm on final settlement offers
Before declaring an impasse, bring parties and lawyers in general session and seek final
offers.
Origins of Impasse
Emotional
o Personal animosity / mistrust
o Vengeance
o Pride/ego/fear of loosing face.
o Fear of change.
Substantive
o Lack of knowledge of facts and law.
o Limited resources.
o Lack of Bargaining Power.
o Incompetence.
o Third parties.
o Fear of being taken advantage of
o Standing on principles
Procedural
o Lack of authority.
o Power imbalance
o Mistrust of Mediator
Ten Effective Ways to Settle a Dispute
Split the difference
Conditional offers (“what if” offers)
Use reactive devaluation.
86 Concept & Techniques of Mediation
Convert to arbitration.
Integrative bargaining
Shift focus to finality, control, risk management, and other intangibles.
Reality testing.
Compare alternatives (BATNA, WATNA, MLATNA)
Generate momentum toward settlement with multiple claimants by settling easy claims first.
Re-visit issues.
Effective Mediator
1) Listens and respondents courteously and with understanding.
2) Acknowledge points made and the significance to the parties of problems and issues.
3) Encourages Parties to make their own decisions.
4) Subtly analysis Parties’ presentations.
5) Asks relevant and insightful questions.
6) Probes, for clarification.
7) Keeps track of new information and changing positions.
8) Appears relaxed, alert and engaged with the process.
9) Demonstrates skill and confidence throughout in verbal communication.
10) Presents information, analysis and explanations in ways that influence the Parties positively.
Ineffective Mediator
1) Allow Interruption
2) Give attention to the person who interrupts
3) Fail to handle interruption appropriately.
4) Allow parties to cross talk.
5) Fail to hold caucus at appropriate time.
6) Cut off parties attorney / friends.
7) Rushing process.
8) Fail to follow four stages of mediation.
9) Reconvene joint session at wrong time.
10) Mediator fixing problem for the party.
Qualities of a Good Mediator
1) Trust: This is the most important characteristic. If the parties do not respect the Mediator, the
chances of success are small. Mediation often involves private discussions between a party
and the Mediator. If the party does not trust the Mediator to keep confidences disclosed at
such a session, there will exist little chance of success. Similarly, if the parties cannot trust the
Mediator to evaluate their positions impartially, the mediation is doomed.
2) Patience: Parties frequently come to the mediation with set positions that take a long time to
modify. A Mediator must have the patience to work with the parties to bring them to the point
where agreement is possible.
3) Knowledge: The chances of success are greater if the Mediator has some knowledge or
expertise in the area of dispute. Because mediation does not result in a decision by the neutral,
knowledge of the subject matter is not as crucial in mediation as it is in arbitration. However,
Concept & Techniques of Mediation 87
the parties in a complicated dispute over software, for example, will have more confidence in
a Mediator who knows something about software technology than they would in a Mediator
who knew nothing about the subject. Furthermore, such expertise will enable the Mediator to
better assist the parties in identifying nontraditional solutions to their dispute.
4) Intelligence: A Mediator must be resourceful and attentive to understand not only the nature
of the dispute, but also the motivations of the parties. Through an understanding of what is
important to each of the parties, the Mediator can bring them into agreement much more
quickly. The requirements are thus not only an ability to understand the subject matter, but an
ability to understand people and their motivations as well.
5) Impartiality: This characteristic is closely related to trust. A Mediator must be impartial.
Some Mediators will express their opinions about the position of a party, or will use their
powers of persuasion in order to bring the parties to agreement. Other Mediators will not
analyze or evaluate the merits of a dispute, but will cause the parties to realize on their
own where the settlement potential lies. In either case, the parties must be satisfied that the
Mediator is neutral. In the former situation, if the Mediator is not viewed as neutral, any
opinions will carry no weight; in the latter situation, the parties will refuse to follow a biased
leader.
6) Good Communication skills: An arbitrator needs only to listen to the evidence and render a
decision based upon knowledge of the law and good judgment. Although these talents are
extremely valuables ones, an arbitrator need not have the ability to communicate with the
parties. A Mediator needs good judgment and good communication skills; it is the Mediator’s
job to evaluate and understand the motivations of the parties, foresee potential solutions, and
then bring the parties to an agreement. Without good communication skills, this task is
impossible.
Barriers to Resolution of Dispute
1) Strategic Barriers:
Negotiation is compared to making a pie and dividing the pie. Conflict resolution affects the
size of the pie. And who gets what size? Litigation can shrink the pie – that is costs, time,
relationship, priorities, needs etc. Negotiation can create values and enlarge the pie. On the
other side, distributive aspects can create deadlocks. For example, A has 10 apples and B has
10 oranges. [Assume that no other apples and oranges are available in the market]. A hates
apples but loves oranges. B loves both equally. If A tells B about it and asks oranges for
exchange, B will do strategic bargaining and would say he also likes oranges, though it is not
true. B will offer one orange for say 5 apples. But if A tells his interest in oranges to a
Mediator in a private caucus and asks him not to disclose it to B, favourable solution can be
reached faster and beneficial to both. Thus a mediator helps in overcoming strategic barriers
by inducing the parties to reveal information about their underlying interests, needs, priorities
and expectations.
2) Principal and Agent Barriers:
Incentives for an agent negotiating for the principal may induce behaviour that fail to serve
the interests of the principal. A Mediator involves the parties directly and tackles this barrier.
A mediator helps in overcoming Principal-Agent barriers by bringing real decision maker
88 Concept & Techniques of Mediation
[Principal] to the table and help him understanding his own interests.
3) Cognitive or Perceptive Barriers:
Each party has its own perception or feelings over an issue. Parties fight [gamble a litigation]
to avoid loss. They settle to receive a gain. For example, there are two gates in this hall, and
the organizers declare that those who exit from North Gate will get Rs. 1,000/- each and out
of these who exit from South Gate randomly selected few, say two, will get Rs. 5,000/- each.
Which gate will most of the people select? Usually people do not gamble for a gain. This is
called Risk Aversion.
Now let us change the game. Organizers announce that those who go out of the North Exit
will each pay Rs. 1,000/- and out of those who exit out of the southern Gate, randomly
selected few, say two, will pay Rs. 5,000/- each. Which gate most people will select for
exiting?
Usually people gamble to avoid loss.
Sure loss [No]
Possibility to avoid loss [Yes]
Mediator takes parties from loss aversion to risk aversion. Thus a mediator helps in
overcoming cognitive barriers by emphasizing potential gains and de-emphasizing or
dampening the losses. 4) Psychological Barriers (Reactionary Devaluation): “If only we could settle for Rs.
10 lakhs, I would put an end to it”. Next day the other side offers Rs. 10 lakh. “No, no!
They must know something we do not know”. Or “If it is a good settlement for them, it
cannot be good settlement for us.” Concessions offered are rated lower than
concessions that are withheld. A mediator helps in overcoming psychological barriers
or reactive devaluation by owning the source of the proposal. [Changing the messenger.
Place of Lawyer in Mediation
It has been found that wherever the lawyers are assisting their parties during the course of
mediation, the settlements have been easy to come. (Barring a few case where the lawyers
have stalled the settlement which was just going to be arrived.). Always give recognition to
the presence of the lawyer and tell them their importance of being present with the parties and
that it would be easier for the parties to settle the dispute if they are assisted by their lawyers.
Give credits to the lawyers for reaching the settlement. The lawyers want their clients to feel
that without them they would have paid more or get less.
Are there Benefits in Mediation for Lawyers?
a) Mediation helps lawyers as for lawyers
b) It is another avenue of professional practice and income.
c) Appearing for a client is a professional service for which lawyers charge their fees. When
cases come up faster for resolution instead of decades later, the income is earned now.
d) Studies have shown that clients are far more willing to pay fees for mediations in which they
participate and can understand than for litigation in which they feel excluded and do not see
progress.
Concept & Techniques of Mediation 89
e) Mediation invariably means a satisfied clients who participate and sees results, and satisfied
clients come back to their lawyers with more business.
f) There is satisfaction in helping to bring about beneficial solutions.
Lawyers as Mediators
Lawyers make good mediators and are sought after. Becoming a mediator is a new field
which lawyers, especially senior ones, may like to try. It has elements of the resolver and
peacemaker, and can also be professionally rewarding. So whether the lawyer refers clients’
cases to mediation, or appears in mediations for clients, or becomes a mediator part or whole
time, several opportunities have opened up for members of the legal profession. Abroad, it is
now common to find leading lawyers and retired Judges of distinction focusing on mediation.
What is the Role of Lawyers in Mediation?
In Mediation the lawyer’s role of arguing, demolishing or cutting down the other side’s
arguments does not help very much since there is no presiding officer to give a verdict for one
or the other. Instead the lawyer’s role is use his legal skills and practical knowledge to see if a
solution is possible, and if so, to help evolve one. A primary role is to protect the client’s
legal interests. The lawyer must also ensure that the client is made aware of the implications
of the decision he is taking. If the mediation is proceeding in a manner which is disturbing or
not serving the interests of the party, the lawyer may advise terminating it.
Benefits of Mediation
A. It is Fast: As the amount of time necessary for the parties and the Mediator to prepare for the
mediation is significantly less than that needed for trial or arbitration, a mediation can occur
relatively early in the dispute. Moreover, once mediation begins, the Mediator can
concentrate on those issues he or she perceives as important to bring the parties to agreement;
time consuming evidence-taking can be avoided, thereby making the best use of the parties’
time and resources. Even if the entire evidence gathering has already occurred, it almost
invariably takes less time to mediate a dispute than to try it in a court.
B. It is Flexible: There exists no set formula for mediation. Different Mediators employ different
styles. Procedures can be modified to meet the needs of a particular case. Mediation can
occur late in the process – even during trial- or before any formal legal proceedings begin. The
mediation process can be limited to certain issues, or expanded as the Mediator or the parties
begin to recognize during the course of the mediation problems they had not anticipated.
C. It is Cost Efficient: Because mediation generally requires less preparation, is less formal than
trial or arbitration, and can occur at an early stage of the dispute, it is always less expensive
than other forms of dispute resolution. If the mediation does not appear to be headed in a
successful direction, it can be terminated to avoid unnecessary costs; the parties maintain
control over the proceedings.
D. Brings Parties Together: Parties can save and sometimes rebuild their relationship like in a
family dispute or commercial dispute.
E. It is Convenient: The parties can control the time, location, and duration of the proceedings to
a significant extent. Scheduling is not subject to the convenience of courts.
F. It is Creative: Resolutions that are not possible through arbitration or judicial determination
may be achieved. For example, two parties locked in a dispute that will be resolved by an
90 Concept & Techniques of Mediation
arbitrator or a judge may be limited to recovery of money or narrow injunctive relief. A good
Mediator makes the parties recognize solutions that would not be apparent – and not available
during the traditional dispute resolution process. Two companies may find it more
advantageous to work out a continuing business relationship rather than force one firm simply
to pay another money damages. The limit on creative solutions is set only by the variety of
disputes a Mediator may encounter.
G. It is Confidential: What is said during a mediation can be kept confidential. Parties wishing
to avoid the glare of publicity can use mediation to keep their disputes low-key and private.
Statements can be made to the Mediator that cannot be used for any purpose other than to
assist the Mediator in working out a resolution to the dispute. Confidentiality encourages
candour, and candour is more likely to result in resolution.
H. Control: The parties control the outcome of the mediation and either party has the advantage
of terminating the mediation, if it is felt that it is not in the interest of the said party.
I. Direct Communication: In a mediation, there is party to party direct communication. At least
the parties have the feeling of being heard by the Mediators if the parties or either of them is
being represented by an advocate.
BATNA, WATNA & MLATNA
BATNA: Best Alternative To Negotiated Agreement
WATNA: Worst Alternative To Negotiated Agreement
MLATNA: Most Likely Alternative To Negotiating Agreement also termed as EATNA
(Estimated Alternative To Negotiated Agreement)
In assessing the value of a settlement offer, it is important to compare the pending offer to any
alternatives to settlement that may exist. In the context of litigation, for example, negotiations
often compare settlement offers to the predicted outcome at trial, factoring in the additional
expenses of going of trial, the risk of losing, and the delay in reaching a judgment or verdict.
In this manner, the negotiator can use the projected trial outcome as a point of reference in
determining whether a pending offer is favorable.
One method of comparison used by negotiators is to compare a pending settlement offer to
the best outcome at trial, also known as the BATNA (best alternative to a negotiated
agreement). Using this point of reference, the negotiator will determine whether the
settlement offer is close to, equals, or exceeds the best outcome at trial, after adjusting for the
litigation expenses of trial, the risk of losing, and the delay in resolving a dispute.
Another valuable method of comparison is for the negotiator to compare the pending
settlement offer to the worst projected outcome at trial, which is the WATNA (worst
alternative to a negotiated agreement). This point of reference is valuable to a negotiator in
determining whether a settlement offer exceeds a party’s worst possible outcome at trial.
Using the BATNA and the WATNA will help a negotiator determine whether a settlement
offer falls within the range of projected trial outcomes by establishing the high and low
alternatives to settlement.
Perhaps one of the most important points of reference for a negotiator is the MLATNA (most
Concept & Techniques of Mediation 91
likely alternative to a negotiated agreement), which reflects the most probable outcome at
trial. Litigators are familiar with the possibility of a judge or jury rendering an award that
falls within a reasonably predictable range (the BATNA and WATNA). Litigators are also
familiar with the fact that it is often possible to narrow the range of possible trial outcomes
further by using their experience as trial advocates and their knowledge of the community
norms for valuing a particular type of case. Thus, as part of the negotiation process, a
negotiator generally will predict the high, low, and most probable trial outcomes in order to
develop a strong point of reference when deciding the relative value of a settlement offer.
Mediators can use the BATNA, WATNA, and MLATNA as part of the reality testing process
in private caucus, to assist the parties and their advocates in evaluating the strength of a
pending settlement offer in relation to the possible outcomes at trial. Systematically
exploring the BATNA, WATNA and MLATNA with parties and advocates will also provide
the mediator with valuable insight into the factual, legal, and analytical basis for their
positions.
Another use of the BATNA, WATNA, and MALTNA by mediators is to employ this type of
analysis for the purpose of overcoming negotiating impasses. It is often useful for a mediator
to remind parties of their BATNA, WATNA, and MLATNA when they lose sight of their
strategic objectives, when they are react strongly to an interim offer by another party, or when
they believe they would like to terminate the negotiating process.
By focusing on the BATNA, WATNA, and MALTNA, a mediator can assist parties in
making a balanced and systematic evaluation of their alternatives to settlement. This type of
analysis will often bring clarity establishing alternatives and enabling the parties to develop a
concrete measuring stick by which they can evaluate settlement offers.
The ‘How to’ of Conducting Meditation
“A peace is of the nature of a conquest; For then both parties nobly are subdued,
And neither party loser.”
— Shakespeare1
Telling people what to do is different from suggesting options and broadening
their perspective to consider lines of thought or actions (for example, in a dispute cover
sale of land: ‘Maybe you can think of a division of land or jointly developing the
property.’). Mediators can open up possibilities for parties to reflect on. It is preferable
to cast it in general terms, and to give two or more options so that mediator preference
is not indicated. Even this is best done a little later in the process. Avoid doing this in
the beginning.
In closing, mediators may keep in mind the following tips about communications:
The focus should be on the other person, thereby foresting proper listening
and understanding, and indicating that one is trying to appreciate the feelings
of the other.
One should show interest in what the other person is saying. Irrespective of
status, all persons deserve and consideration.
A word of appreciation goes a long way.
Expressions carelessly used can hurt or belittle.
Matter can be stated carefully instead of bluntly.
One should aim for clarity in communication. This stems from clarity of
thought; such clarity should be maintained in speech.
Words should be well chosen, and enunciated clearly.
Precision should be sought and ambiguity avoided. Language ought to be easy
to read and listed to. Being concise and relevant are the hallmarks of a good
communicator; verbosity and repetition are displayed by the ineffective one.
Using specific facts and figures shows that you are well informed.
When one does not have the answers it is better to say so than to hazard
guesses.
Choice of words, using metaphors and turn of phrase add to the style and
appeal of communication.
Having gained an understanding of the basic skills of communication, we return to
mediation in the next chapter, so see how it is and practised.
1 King Henry IV, Act 4 Scene 2.
2 The ‘How to’ of Conducting Meditation
INTRODUCTION
This chapter deals with the procedure for conducting a mediation starting from the
decision to submit a dispute to mediation, and going up to the stage of agreement.
If a law suit over the dispute is pending in court then it may be referred to
mediation either on the parties’ request or suo motu by the court under Section 89 of
the Civil Procedure Code, 1908 (CPC). In this case the court may either refer the matter
to the court annexed mediation centre, to a particular mediator or mediation centre by
name. Such a mediation is governed by the CPC under Section 89, CPC. The mediation
agreement comes back to the court for being recorded in an order or decree.
Mediation conducted out of the court system is with the consent of the parties and
is governed by provisions of Part III of the Arbitration and Conciliation Act, 1996
(ACA). The term “conciliation” used in this Act is to be also read as mediation, and is
contrasted with court-annexed mediation, this can usefully be referred to as private
mediation. This parties may jointly appoint the mediator or seek the help of an
institution to do so. If the provision for mediation exists in a contract between the
parties, the same can be followed. Part III of the ACA is a comprehensive set of rules
governing private mediation including appointment, conduct of the process,
confidentiality, termination etc. Agreements reached here are to be treated as arbitral
awards by consent and are thus enforceable. It may be clarified here that it is also open
to the court to refer a dispute to private mediation which will then be governed by the
ACA.
Once the mediator(s) has been appointed, his first step is to provide the parties
with information on the process of mediation. Some mediators like to have a
knowledge of the case before commencing the mediation; these may request parties for
a brief note on the facts and perhaps some essential documents. Chapter 10 provides
more information on communication between parties and mediators prior to the actual
mediation, and other pre- mediation protocols.
CONFLICT OF INTEREST
When approached to mediate a case, the mediator should check if there is any
conflict of interest which makes it necessary or preferable that he should withdraw.
Potential conflicts of interest arise from a relationship between the mediator and a party
or on account of a connection the mediator may have with the subject matter of the
dispute. Before proceeding with the mediation it must be ensured that there is no
conflict of interest. If any such conflict exists or emerges during the mediation, the
mediator must disclose the same and withdraw. He may continue only if both the
The ‘How to’ of Conducting Meditation 3
parties request him to so and he himself is of the opinion that the degree of relationship
or connection is so minimal as not to constitute a conflict.2
In a private mediation, the terms of the engagement of the mediator viz. Fees and
expenses should be agreed to by the parties It is preferable that this done in the
beginning itself. An agreement to mediate with undertakings of confidentiality and to
participate in good faith3
should also signed by the mediator and the parties (See
Annexure 3).
The next step is so fix the time, date and venue for the mediation session. The
venue should be a neutral place. This may be at the mediation institution (if any) or the
mediator’s office, or another convenient venue. It is useful to have too rooms available
for the mediation to allow for private sessions.
PARTICIPATION IN THE PROCESS
Once the parties have assembled at the mediation table, the mediator needs to
ensure that all those who need to be present to resolve the dispute are present. Since the
proves emphasises the participation of the parties, it is preferable that they all be
present in person. While in a few cases it may be adequate to proceed only with the
lawyers representing the parties, in most mediations the mediators like to secure the
presence of the parties since this enables full communication and greater discussion of
options leading to better solutions. Indeed, the mediation process is adapted for
participation by parties, unlike the one in court which is designed for lead roles of
lawyers. Where the party is a corporation, firm, institution or the government, the
officer representing is must have the authority to do so. It is preferable that this be in
writing.
The representative should be empowered to take decisions at the mediation table.
Sometimes the representative is given a limited power of decision-making, and needs
to check with his superiors to go beyond that. Should the mediator insist that the
ultimate decisions-maker come? This is left to the mediator’s discretion. In some cases
it may be necessary to do so, especially when the discussion needs his presence. In
other cases, it may be possible to proceed with the mediation, provided that a quick
response and decision-making arrangement is in place. Business and locational realities
are such that it may not be possible for the ultimate decision-taker to come to the
mediation table. It should, however, be ensured that the representative is not merely a
to-and-fro communicator or a person with extremely limited authority; he should be
able to adequately participate in the discussion and the decision-making process.
There should not be too much disparity in the number of people representing each
party. For example, the number of officers and lawyers representing it may be used by
one side as a tactic to intimidate the other side.
2 For a detailed discussion on conflict of interest, see Chapter 11.
3 For a detailed discussion on good faith and confidentiality in the mediation process, see
Chapter 11.
4 The ‘How to’ of Conducting Meditation
It may also be necessary to keep some people out of the mediation session. Where
numerous persons are affected in a dispute – for instance, many depositors seeking
their moneys from a finance company – they will have to select their representatives;
else, there will be too many voices at the table, decision-making becomes difficult, and
the other side can be intimidated by the presence of so many rivals. Family members
often want to be present, especially in matrimonial cases. The safer course is to keep
them out, especially in the beginning. Their presence may inhibit the parties from
speaking their minds; they may be, in fact, the root of the problem or contributories to
it. Once the mediation is underway, it may be necessary to involve them not so much as
to arrive at a decision but to carry it out. If, however, a party to the mediation, such a
wife who is severely intimidated by the husband, is not able to effectively speak for
herself, the assistance of a family member from the beginning is advisable.
Where minors are involved, care is indeed, In law, minors do not have the
capacity to take decisions, and the ones taken on their behalf can be repudiated when
the minor reaches the age of majority. Where it becomes necessary to deal with a
minor’s share, it is necessary that the person speaking for the minor is the parent or a
guardian appointed by the court to represent the minor. In any event, mediator must be
watchful that the minor’s interests are not neglected or bartered away; if that seems to
be the case the option to terminate are mediation should be exercised.
What about Mediators should not prevent the appearance of legal
lawyers attending counsel. It is better to have a lawyer – even a difficult one
the mediation – at the table, rather that the party complaining later that it
along with the unknowingly gave up its rights in the mediation. Closing
parties? the door to the lawyer will just result in him advising the
client outside that
representation.”4 pending.5 Of 2000.6 years.7 Of cases.8 The judges9
in,177.10
Despite).11 At place.12 years.”13 In population.14 While inadequate.15
All
4
Id. at 52
5
J. Venkatesan, “”
6
Indian .
7
Ibid.
8
Id. at 35.
9
Id. at 6:.
10 First.
11 Indian 7.
12The.
13 120th
.
14 Recently,.
15 This

Creating Effective Communication in Your LifeRandy Fujishin(Creating Communications: Exploring and Expanding your Fundamental CommunicationSkills, 2nd Edn., Rownman Littlefield Publishers.2009, pp 1-17)

Portion Relevant for LB-602 Retained

dashboard to remind yourself of your goals.

vikash Kumar

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