Fighting the wimp image: Why calls for negotiation often fall on deaf ears

Conclusion Must calls for war always dominate pleas for more serious negotiation? Not necessarily. But, if negotiation is to prevail, its advocates have to recognize which elements of their rhetoric sound weak and timid to others.Right after the routing of the Iraqis from Kuwait, the conventional wisdom was that American voters would repudiate those members of Congress who had argued for more negotiation — the surrender lobby, one belligerent called them. Iraq would teach elected officials not to talk of negotiation in the future. Now, barely a year from the start of hostilities, the verdict is not quite so clear. With Saddam still in power and the establishment of President Bush's new world order yet to be proven, opinion polls suggest that a growing number of Americans now regard the war as only a partial success. Public awareness of the costs of war, as well as its seeming benefits, can only be to the good, but apostles of negotiation should be careful not to read such numbers as vindication of their views. Skepticism about war still must be matched by some well-founded confidence in its alternative. Michael Wheeler is Director of the Undergraduate Program, Department of Urban Studies and Planning, Massachusetts Institute of Technology, Cambridge, Mass. 02139. He is also Deputy Director of the Program on Negotiation at Harvard Law School.     

Compliance without enforcement: State behavior under regulatory treaties

Conclusion The common conception is that treaties are not complied with because they are unenforceable, and that the cure for this condition is treaties with teeth. Our study shows that there are good reasons why states resist formal enforcement measures in treaties and are likely to continue to do so.On the other hand, negotiation, which is the principal method for dealing with compliance problems, has had a significant measure of success. This should not surprise us. Negotiation often produces agreements between parties who are not bound to agree to anything. In the context of a set of treaty norms accepted by the parties and acknowledged as having binding force, bargaining takes place in the shadow of the law as surely as when there is a possibility of ultimate recourse to coercive sanctions.In this article, we suggest some approaches that appear to enhance the effectiveness of this process. Some have close links to general negotiating theory, such as the importance of transparency between the parties and the need for careful attention to the possibilities for non-binding third party involvement. Others are more closely related to the structural features of national and international decision-making. It remains to elaborate on these themes and integrate them with others in a comprehensive account of how and why states comply with treaties. Abram Chayes is the Felix Frankfurter Professor of Law at Harvard Law School, Cambridge, Mass. 02138.Antonia Handler Chayes is a principal in Endispute Inc., 955 Massachusetts Ave., Cambridge, Mass. 02139. Abram and Antonia Chayes are co-directors of the Project on International Compliance and Dispute Settlement, a research project based at the Program on Negotiation at Harvard Law School.     

Strategic issues in structuring multi-party public policy negotiations

Conclusion The protocols suggested here provide a framework for addressing the major strategic issues encountered in structuring multi-party public policy negotiations. A careful consideration of the procedures before substantive negotiations begin is the best assurance that these issues will not emerge as dilemmas and crises during the process itself. The protocols should be created by the parties to derive the full benefits of relevance and commitment. To borrow protocols created for another negotiation may result in both unrealistic and missing provisions.Having a good dispute, where the appropriate parties effectively explore and address their most essential and difficult differences, is the critical first step in effective dispute settlement. Gerald W. Cormick is regional director of The Mediation Institute, 15629 Cascadian Way, Mill Creek, Wash. 98012 and research associate professor at the Graduate School of Public Affairs, the University of Washington.An earlier version of this column was presented by the author during a panel on environmental and natural resource dispute resolution at a research conference sponsored by the Association for Public Policy and Management, 30 October 1987, in Bethesda, Md.     

The Ombudsman: What's in a Name?

The role of the ombudsman is perhaps the least well understood inthe field of alternative dispute resolution (ADR). This essay introducesreaders to the differing conceptions of the role; the sometimes fractiousdivide that has existed in the past between classical andorganizational ombudsmen; and a collection of essays by four well-known practitioners that shed lighton what it is ombudsmen do; the kinds of disputes they deal with and howthey operate; how they view their role (and how others view it); and boththe possibilities and limitations of the ombuds function.     

Scrolling Around the New Organization: The Potential for Conflict in the On-Line Environment

The technological revolution has created as many challenges as opportunities for managers in today's organizations. Besides wandering around to manage, scrolling around on a computer screen has become common-place. This article reviews four key technology-caused challenges facing managers in the workplace, chiefly as the result of communication via e-mail. Specifically, the author focuses on what research to date informs us about negotiation and conflict resolution in an electronic environment.     

New Problem-Solving Scholarship: An Historical Tale with a Happy Ending

The teaching of negotiation in law, business, and other professional schools has greatly increased over the last quarter-century. The author sets the stage for a review of two negotiation texts and an educational video by opening with an historical overview of the development of negotiation pedagogy, which has been informed by scholars from many different academic disciplines. Teaching negotiation in law schools (which have a long tradition of the case method style of teaching, which often encourages an energetic but adversarial approach to problem solving) is still relatively new. The two texts and the educational video examined in this essay offer lessons in a wide angle approach to negotiation, which includes (among many other useful topics): ideas fundamental to theory and practice; social and emotional considerations; the role of cultural and gender difference; relationships between principals and representatives; differences among various types of ADR; and applications of various forms of negotiation in many different contexts.     

Book Review: Facing the Decisions One Should Make and the Decisions One Wants to Make

Authors of two recent books, Smart Choices and The Win-Win-Solution, offer negotiation practitioners some new twists on how they can improve their decision-making processes. In the first book, Hammond, Keeney, and Raiffa present a five-part PrOACT system, which features: an assessment of the problem; determination of objectives; exploration of alternatives; comprehension of the consequences; and dealing with tradeoffs. The second book, by Brams and Taylor, outlines four settlement options that are available to decision makers, but advocates an adjusted winner approach. The authors have devised a system in which individuals' subjective assessments of particular items in dispute receive point totals, which can then be divided in an equitable manner. In effect, the authors show readers how to deal with the decisions they should make, and those they want to make.     

Ready for Prime Time: The When,Who, and Why of International Mediation

Most of the literature on international dispute resolution emphasizes timing and ripeness when considering whether or not a dispute is suitable for mediation. In addition to this focus, the authors believe analysts should consider whether a particular mediator is ready for prime time. Their framework posits that one may gauge the appropriateness of a mediator for a particular dispute along three different types of considerations: operational and political; strategic and diplomatic; and relationship and cultural fit. They provide numerous case examples illustrating how the choice of a mediator might apply in each dimension.     

Crafting the language of consensus

Conclusion In summary, the consensus process provides a necessary set of procedures and standards that provide the essential foundation for reaching mutually supported settlement of disputes. Adjudicatory or voting processes are antithetical to the very nature of the consensus process. When voting takes place, winners and losers are explicitly defined. This can lead to lessened support for implementation of solutions—and even to the losers preferring that implementation fail.As with any other processes, consensus-based processes can—and, at times, should—fail. Where consensus fails, participants will have recourse to other alternatives for making decisions, including administrative, legal, and political forums, the alternative forums which provided the impetus for disputing parties to seek mutually agreeable solutions through a consensus process. Gerald W. Cormick is a mediator specializing in public policy dispute settlement and a Senior Lecturer in the Graduate school of Public Affairs at the University of Washington. His mailing address is 15629 Cascadian Way, Mill Creek, Wash. 98102.This column is based on materials developed by the author for the British Columbia Round Table on the Environment and the Economy, 8 April 1991.     

The Cairo Stories: Some Reflections on Conflict Resolution in Egypt

The author relates three cases of conflict which he has observed in Cairo and recognizes patterns that cut across each of these stories. The stories shed light on how people in Egypt approach and deal with conflict; in addition, they may help readers understand conflict in their home culture as well as be instructive on how to listen to conflict in different cultures. Six general themes in the way Egyptians approach or handle conflict are identified, and each of these themes is analyzed.     

The jagged line between mediation and couples therapy

Conclusion Mediation of conflict in couples has emerged as a hybrid discipline blending theory and practice from psychology, law and other disciplines. In attempting to orchestrate a successful negotiation, mediators engage the couple in problem solving over concrete issues and workable alternatives. While the healing aspirations of couples therapists transcend the narrower focus of mediation, clinical practice is enriched and informed by facilitating a negotiation that provides valuable data in an economic manner and a rich context for therapeutic intervention. Michael Meltsner is Distinguished University Professor of Law at Northeastern University Law School, 400 Huntington Ave., Boston, Mass. 02115, and a licensed marriage and family therapist.This article is based on a paper presented at the Cambridge Hospital/Harvard Medical School Conference Treating Couples and Their Families, Cambridge, Mass., 26 October 1991. I am grateful for the thoughtful comments of Barbara Hauser and the encouragement of the Couples Team of the Family Center, Somerville, Mass.     

Caveats for Cross-Border Negotiators

Scholars and practitioners have detailed a number of ways that differences in national culture can affect bargaining behavior: from surface etiquette and protocol to deeper cultural characteristics and to systematic variations in decision making and governance. Such cross-national analysis can be quite useful but is prone to at least four hazardous fallacies described in this article and illustrated, in some cases, by probabilistic reasoning. Along with suggestions for avoiding them, these fallacies include: (1) The John Wayne v. Charlie Chan Fallacy (stereotyping); (2) The Rosetta Stone Fallacy (overattribution); (3) The Visual Flight Rules Fallacy (skewed perceptions and information processing); and (4) St. Augustine's Fallacy (When in Rome...).     

Resolving university landlord-tenant disputes

Conclusion The housing arbitration system used by Brigham Young University's Housing Arbitration Board (HAB) has been widely used at the school for many years. It has not worked perfectly. Some landlords are critical of the school's laxness in enforcing arbitral awards.In general, students prefer the process over small claims court (chiefly, it appears, because of cost factors). The school administrators prefer mediation over arbitration but recognize that mediation does not always resolve impasses. Legal questions exist about BYU's potential restraint of trade in using the obligatory contracts the school mandates for landlords. The process relies upon persons of goodwill to serve on the tribunals, but has a long enough track record to demonstrate the HAB concept works quite well. Because of annual turnover, the need for training of mediators/arbitrators is always critical. Other universities may well wish to emulate (or modify) the HAB model in resolving their landlord and student-tenant disputes. William M. Timmins is Professor of Personnel Administration and Labor-Management Relations at the Graduate School of Management, Brigham Young University, Provo, Utah 84602. Among his recent publications isThe International Economic Policy Coordination Instrument: The OECD Experience (London: The University Press, 1985).     

A Discussion Summary of the First Dispute Systems Design Conference

Conclusion A dominant theme throughout the conference was how best to relate existing, traditional dispute systems (e. g., the courts, grievance panels, etc.) to the methods generally advocated by dispute systems designers (e. g., negotiation, mediation, etc.). Exploring that relationship is one of many dispute system design issues worthy of further discussion by practitioners and scholars.In sum, the conference discussion strongly indicates that there is a common set of dispute systems design issues across several contexts. Practitioners were clearly able to build on each other's insights and to learn from one another's practices, even when the settings for these practices diverged widely. An approach that focuses on these common dispute systems design issues appears to be a powerful method of developing individual practitioners and of developing the practical knowledge base of the profession as a whole. Based on this observation, the answer to the question in the title of this article is yes. Tony Simons is a doctoral student at the Kellogg Graduate School of Management of Northwestern University, 3-191 Leverone Hall, Evanston, Ill. 60208.     

Negotiation: The Chinese Concept

It is no understatement to say that negotiation activity has skyrocketed in China in recent years; however, these negotiations are frequently unsatisfactory. Part of the reason for this lack of success is that Chinese people have a conception of negotiation that is fundamentally different from that of people in the West. Based on extensive interviews with Chinese and non-Chinese negotiators over a period of five years, the author explains the Chinese approach by using two metaphors: mobile warfare and the joint quest. Understanding this approach has significant implications for negotiation practice.     

Sustained Dialogue in Managing Intractable Conflict

In the warn-torn new nation of Tajikistan, the author has been part of a five-stage dialogue for peace since 1993. The focus of the dialogue has been on transforming relationships and changing relationship dynamics so that this intractable conflict can be addressed positively. The author briefly describes this multilevel peace process both historically and substantively. He also discusses the continual process of evaluation of the Inter-Tajik dialogue effort as well as focuses on a series of questions that apply to intractable conflicts in general.     

Negotiating with Your Nemesis

The assumption that negotiators can and should eradicate emotions from negotiating is unrealistic. Instead, effective negotiators know how to handle emotional outbursts including how to respond when the other negotiator evokes their nemesis. A nemesis is the hidden part of ourselves that we project onto others who push our hot buttons. When emotions are intense, understanding the possibility that you may be giving or receiving a projection can help you sidestep escalatory behavior. This article explores the concept of the nemesis and offers practical steps for confronting it as well as responding to others' emotions at the negotiating table.     

Designing a dispute resolution system for water policy and management

Conclusions The Montana state water planning process represents one example of how a government agency with decision-making responsibilities can design and facilitate a dispute resolution system. Dispute resolution systems can increase the participation of all affected interests in developing and implementing public policy. This, in turn, should increase their ownership in the final decision and in seeing that it is implemented. A dispute resolution system may not decrease the volume of conflicts, per se, but it should reduce the high costs of conflict and realize the benefits of conflict more efficiently.The use of dispute resolution systems to address complex, multi-party public policy issues also provides other benefits, including the consideration of diverse perspectives and interests; the cooperative and systematic analysis of technical and scientific information; the formation of more pragmatic, equitable, and mutually acceptable goals and alternatives; and the improvement of relationships among diverse, often competing interests, government agencies, and policymakers. Matthew McKinney is a policy analyst and facilitator with the State of Montana Department of Natural Resources and Conservation, 1520 East Sixth Avenue, Helena, Mont. 59620.An earlier version of this article was presented at a conference titled Innovation in Western Water Law and Management, held at the Natural Resources Law Center, University of Colorado School of Law, 5–7 June, 1991.     

The Illusion of Transparency in Negotiations

The authors examined whether negotiators are prone to an illusion of transparency, or the belief that their private thoughts and feelings are more discernible to their negotiation partners than they actually are. In Study One, negotiators who were trying to conceal their preferences thought that their preferences had leaked out more than they actually did. In Study Two, experienced negotiators who were trying to convey information about some of their preferences overestimated their partners' ability to discern them. The results of Study Three rule out the possibility that the findings are simply the result of the curse of knowledge, or the projection of one's own knowledge onto others. Discussion explores how the illusion of transparency might impede negotiators' success.     

Groundhog Day: Teach it Again...and Again.

The problem of teaching the same negotiation class again and again, yet remaining fresh and spontaneous, is a dilemma familiar to academics. The situation is akin to that of characters in the movie, Groundhog Day, living the same 24 hours over and over, trying to get things just right. This article reflects on this problem, and offers some advice.