Mediation and negotiation pptx

Mediation and negotiation require similar skills and approaches:– a win-win outcome and
removal of psychological blocks.
Mediation involves two parties who jointly invite a third party to facilitate reaching an
agreement. In some cases the mediator might need to understand contract law or to have
access to comparative data. However, the principles of mediation require only that the
facilitator is able to understand the objectives, beliefs and perceptions of the parties – and
then facilitate mutual changes of position until the two parties can agree.
Mediation is the attempt to help parties in a disagreement to hear one another, to
minimise the harm that can come from disagreement (eg hostility or ‘demonising’ of the
other parties) to maximise any area of agreement, and to find a way of preventing the
areas if disagreement from interfering with the process of seeking a compromise or
mutually agreed outcome.
In negotiation the facilitator normally works for one side, training the team or individual
in negotiation skills, preparing them for a particular negotiation and coaching them
during the negotation. Many of the processes are the same, though, because the object is
to understand the other party and to create an outcome that will fulfil their aspirations as
well as one's own.
Negotiation is the process of searching for an agreement that satisfies various parties. An
agreement may be reached either through a barter or through real negotiation. A barter
allows only one party, the one in a position of power, to ‘win’. The other party is forced
to accept something of lesser value. A real negotiation implies a ‘win-win’ situation in
which all parties are satisfied.
The parties agree to work with each other to resolve a dispute. The parties always meet
with each other. The parties can bind themselves in an agreement. The parties have their
own interests in the negotiation. The parties use persuasion to get the other side to agree
with them. Some negotiations fail because the parties cannot work with each other. Some
negotiations fail because the parties have too many conflicts. Some negotiations are not
voluntary such as union negotiations. When the parties can't agree, they reach a deadlock
or impasse .
The parties agree to work with a facilitator or mediator to resolve a dispute. A mediator
may meet with both parties jointly or meet individually with one party which is called a

caucus. The mediator has no decision-making authority and cannot bind the parties. A
mediator does not make a ruling like a judge or arbitrator. The mediator is neutral and
impartial and does not represent either party's interests. The mediator may play devil's
advocate or give a reality check to the parties, but it is not the mediator's role to persuade
the parties. A mediator may be used because the parties prefer a third party. A mediator
may be able to defuse conflicts or disagreements. Mediation is voluntary and either party
may choose to stop at any time. When negotiations reach an impasse, the parties may try
mediation .
The advantages of negotiation are that it limits the number of players to those involved in
the dispute. This allows for a focused approach to problem solving. The disadvantage is
that if the viewpoints of the parties are to distant then progress is difficult to achieve.
1. A negotiator's relative strength is determined by the quality and extent of his/her
preparation. The better you understand your interests (why you want what you want); and
the better you understand the interests of other parties (why they want what they want),
the greater the chance you will be able to reach an elegant solution which leaves the
parties feeling as if each has achieved the major portion of their goals.
2. A negotiator's relative strength can be measured by whether people walk away
thinking they would be pleased to negotiate again with him/her. If people leave a
negotiation with you thinking they never want to see you again, then you are a poor
negotiator.
3. A negotiator needs to understand that different issues should be treated as having
different priorities in different negotiations. Sometimes the relationship is most
important; other times creativity is the measure of how well one negotiates; and it is
always true that good communication is a fundamental measure of a negotiator's strength.
A good negotiator makes her/his points clearly understood by other parties. A better
negotiator makes understanding other parties her/his top priority.
If mediation follows no set procedure, results in no assured outcome, and cannot compel
parties to agree unless those parties wish to do so, what advantages are there to
mediation?
1. Mediation is relatively inexpensive. Seeing a case through trial is an expensive

proposition.
2. Mediation is relatively swift. There is no dearth of mediators ready and willing to
assist parties whose goal is to try to settle a matter. A quick web search will result
in hundreds of mediators and mediation websites, some specializing in certain
types of cases and some more experienced and able than others. Mediation does
not run by a clogged court schedule and sessions can be easily scheduled any time
at the mutual convenience of the parties and the mediator, and can take place in a
variety of locations.
3. Mediation is relatively simple. There are no complex procedural or evidentiary
rules which must be followed. While most would agree that a general rule of
fairness applies, the maximum penalty a party can impose for foul play is to walk
away from the mediation and take his chances in court.
4. Mediation allows the parties to revise and adjust the scope of their conflict. In a
trial, initial pleadings and rules of procedure limit the issues which a party can
raise. In mediation, as circumstances change so can the topics up for discussion.
This increased flexibility makes it easier for negotiators to act as problem-solvers
instead of adversaries.
5. Mediation allows for flexible solutions and settlements. The relief available in
court is usually based on pecuniary damages, and equitable relief is hard to come
by. In mediation, however, the parties can agree to a settlement requiring, or
restraining, action by one party which was not originally envisioned as something
beneficial to the other party.
6. Settlements reached in mediation are more agreeable to both parties than court
judgments. Because any settlement arrived at through negotiation is necessarily
agreed to voluntarily by both parties, obligations under the agreement are more
likely to be fulfilled than obligations imposed by a court.
This list is by no means exhaustive, but at least presents a framework in which we can
consider the advantages of mediation. In addition, there is a similar list which can be
constructed in which we can start to consider some of the typically mentioned
disadvantages of mediation.

1. Mediation does not always result in a settlement agreement. Parties might spend
their time and money in mediation only to find that they must have their case
settled for them by a court. Opting for mediation, therefore, presents something of
a risk. Further, if mediation fails, much of a party’s “ammunition” might have
already been exposed to the opposing party, thereby becoming far less useful in
the ensuing trial.
2. Mediation lacks the procedural and constitutional protections guaranteed by the
federal and state courts. The lack of formality in mediation could be a benefit, as
noted above, or a detriment. Mediation between parties of disparate levels of
sophistication and power, and who have disparate amounts of resources available,
might result in an inequitable settlement as the less-well positioned party is
overwhelmed and unprotected.
3. Legal precedent cannot be set in mediation. Many discrimination cases, among
others, are brought with the intention of not only securing satisfaction for the
named plaintiff, but also with the hope of setting a new legal precedent which will
have a broader social impact. These cases are only “successful” if a high court
(usually the United States Supreme Court) hands down a favorable decision on the
main issue. Mediation is therefore not beneficial for such cases.
4. Mediation has no formal discovery process. If one of the parties to a dispute
cannot fully address the case without first receiving information from the other
party, there is no way to compel disclosure of such information. The party seeking
disclosure must rely instead on the other party’s good faith, which may or may not
be enough.
So is mediation a good thing? Should you encourage a client to mediate a matter rather
than litigate? The answers to these questions depend on which of the various advantages
and disadvantages of mediation apply in any given case.
I use negotiation and mediation skills look like in the future:
• Good COMMUNICATION SKILLS. The usual suspects of building rapport,
picking up cues, non-verbal communication and also being able to clarify and
summarise regularly. Etc….

• Being FLEXIBLE. (Have options thought about before but also try thinking
creatively.)
• CHUNK UP. This is just a term suggesting if negotiation is stuck in the specifics
you could try to be a bit more general to see if other options occur.
• CHUNK DOWN. This makes things more specific and might be used to move
negotiation on.
• Being able to stress the POSITIVE CONSEQUENCES of your proposal being
accepted. (For example if we concentrate on this the evidence is that the majority
of registrars pass the video component of the exam.)
• Let the other person know the NEGATIVE CONSEQUENCES of your proposal
being rejected. (For example that you feel so strongly about this that I will
consider not filling in the trainer’s report.)
• Be aware that the block on a lot of negotiation is based on conflict of BELIEFS
AND VALUES so I have to acknowledge what mind are and try and explore what
is important to the other person.
• Try to identify whether the other person’s perspectives are locked in the PAST
(We have always done things this way) the PRESENT (At this moment in time we
have to consolidate things) or the FUTURE. (The only way is to make changes
and move ahead.)
• Recognise when TIME OUT is needed either to consider options or for some
housekeeping.
• In every negotiation/mediation individuals should anticipate that there will be
challenges to their ideas or style. Being able to respond to such challenges ensures
that negotiators can recover and restore face. Building self-confidence and being
creative is an essential pre-condition to that response. Self-confidence encourages
experimentation and risk-taking in the sense of following intuition or novel
interventions that might positively alter the flow of the interaction and lead to
creative breakthroughs.
• As an experienced negotiator/mediator I already have many of the technical skills
and capabilities which are necessary for quality performance. This workshop

focuses on the role of creativity in negotiation/mediation – to bring fresh thinking
and new techniques for breaking deadlock, developing a future focus and
generating ideas for solutions.
• The programme offers a range of techniques which will enhance your ability to
think more freely, to encourage creativity in others, to tackle difficulties and to
help build solutions.