Alternative Dispute Resolution Mechanism
ALTERNATIVE DISPUTE RESOLUTION APPROACHES AND THEIR APPLICATION Yona Shamir Israel Center for Negotiation and Mediation (ICNM), Israel (Assisted by Ran Kutner) SC-2003/WS/43 The designations employed and the presentation of material throughout this publication do not imply the expression of any opinion whatsoever on the part of UNESCO concerning the legal status of any country, territory, city or area or of its authorities, or concerning the delimitation of its frontiers or boundaries.
The authors are responsible for the choice and the presentation of the facts contained in this book and for the opinions expressed therein, which are not necessarily those of UNESCO and do not commit the Organization. ACKNOWLEDGMENT This article is a contribution from UNESCO’s International Hydrological Programme to the World Water Assessment Programme.
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It was prepared within the framework of the joint UNESCO–Green Cross International project entitled “From Potential Conflict to Co-operation Potential (PCCP): Water for Peace,” and was made possible by the generous financial assistance of the Japanese government.
CONTENTS Summary 1. Introduction and Overview 2. The ADR (Alternative Dispute Resolution) Spectrum 3. Negotiation: Principles and Procedures 3. 1. Competitive and Integrative Models 3. 2. Principles 3. 3. Skills 3. 4. Cultural and Identity Aspects 3. 5. Psychological Aspects 3. 5. 1. Psychological Traps 3. 6. International Negotiation 3. 7. Negotiations Over Water 3. 7. 1. International Water Negotiations/Conflicts 3. 7. 2. Intra-national Water Negotiations/Disputes 3. 8. Treaties 4. Mediation 4. 1. The Advantages of Mediation 4. 2. Positive Results of Mediation 4. 3. The Role of the Mediator 4. . Skills and Tools of a Good Mediator 4. 5. The Problems that the Mediator Attempts to Resolve 4. 6. Techniques and Strategies 4. 7. Models and Approaches to Mediation 4. 8. Controversial Issues in Mediation 4. 9. Psychological Issues 4. 10. Ethical Code, Issues, and Dilemmas 4. 11. International Mediation 4. 11. 1. Mediation in International Water Conflicts 5. Consensus Building: Principles, and Procedures 5. 1. Principles and Procedures 6. Conclusion 7. ADR Basics: Definitions Bibliography 1 2 4 6 6 7 10 12 13 14 16 18 18 21 22 23 24 25 25 26 26 26 27 29 29 30 31 31 33 33 36 37 40
ALTERNATIVE DISPUTE RESOLUTION APPROACHES AND THEIR APPLICATION Alternative Dispute Resolution comprises various approaches for resolving disputes in a non-confrontational way, ranging from negotiation between the two parties, a multiparty negotiation, through mediation, consensus building, to arbitration and adjudication The article introduces the key skills required, with particular attention to their important role in the process of negotiation and mediation, with examples of their application in national and international water conflicts. Conflict is endemic to human society, among individuals and groups, and it is important to manage it.
We find stories in the Bible, in the Islamic culture, among Native Americans, First Nations in Canada, and many other traditions that describe processes that have been used from the earliest times to find peaceful solutions to various disputes, and much can be learned from the past. In recent decades, the various conflict resolution approaches have become a widely accepted field both of academic study and of practice, with official and/or legislative functions in many countries. In international relations, they plays an increasing role in containing, managing and resolving potential sources of conflict.
The article reviews its complex development. While conflict can be dangerous, it also carries the possibility of producing creative cooperation in a win–win solution. The key to this is for participants to engage as joint problem solvers, seeking to resolve the dispute, and to try and “enlarge the pie” rather than acting as adversaries and aggravating the situation. A mediator can play a valuable role in this process, facilitate a negotiation process which has come to a dead end, helping the parties concerned to focus on their essential interests rather than defend (or attack) fixed positions.
The principles and procedures of consensus building are dealt with in some detail. The article outlines the principles of negotiation, based on interests and needs of the parties, the use of proper communication, and maintenance of a working relationship as an essential component for reaching a durable agreement. It lists and considers the essential skills needed by negotiators and mediators, and points the different cultural expectations (national, regional, religious, or professional) and the psychological aspects that affect perceptions and communications.
It outlines a range of strategies for and approaches to mediation, and the ethical problems that may arise. 1 1. INTRODUCTION AND OVERVIEW Alternative Dispute Resolution (ADR, sometimes also called “Appropriate Dispute Resolution”) is a general term, used to define a set of approaches and techniques aimed at resolving disputes in a non-confrontational way. It covers a broad spectrum of approaches, from party-to-party engagement in negotiations as the most direct way to reach a mutually accepted resolution, to arbitration and adjudication at the other end, where an external party imposes a solution.
Somewhere along the axis of ADR approaches between these two extremes lies “mediation,” a process by which a third party aids the disputants to reach a mutually agreed solution. This article introduces the key concepts, principles and skills of ADR in a generic form with examples of how they might be applied in the context of water conflicts. The glossary contains definitions of terms used, and readers are advised to familiarize themselves with them. Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the earth.
In fact, they also exist in the animal kingdom. Philosophies and procedures for dealing with conflicts have been part of the human heritage, differing between cultures and societies. Nations, groups, and individuals have tried throughout history to manage conflicts in order to minimize the negative and undesirable effects that they may pose. Conflicts can develop in any situation where people interact, in every situation where two or more persons, or groups of people, perceive that their interests are opposing, and that these interests cannot be met to the satisfaction of all the parties involved.
Because conflicts are an integral part of human interaction, one must learn to manage them, to deal with them in a way that will prevent escalation and destruction, and come up with innovative and creative ideas to resolve them. Dealing with conflicts – “conflict management,” or “conflict resolution” as it has come to be called in professional circles – is as old as humanity itself. Stories of handling conflicts and the art of managing them are told at length throughout the history of every nation and ethnic group who share the same history. Conflicts have been recorded from the very early days of humankind.
We find in The Bible and similar religious and historical documents in different cultures an account of conflicts that were resolved by various processes, including negotiation, mediation, arbitration, and adjudication. We also find accounts of various types of negotiations: between animals and humans, between two persons, between an individual and a group, between two groups, and between humans and God. The first negotiation in The Bible was between the snake and Eve, over the apple in the Garden of Eden. But not all conflicts in religious scriptures have been resolved by alternative/appropriate dispute resolution (ADR).
One that was resolved by force and violence is the story of Cain and Abel. In The Bible we find among many stories of conflicts and their resolution, the story of Abraham and Lot negotiating, where Abraham, in order to avoid a fight, offers Lot a deal that Lot cannot refuse. Negotiation was conducted not only between people, but also between humans and God. Abraham negotiated with God over the fate of the people of Sodom and Gomorra. God also acted as a mediator between Abraham and Sara when she wanted Abraham to expel Hagar and her son.
In the Muslim tradition we find the story of Muhammad who negotiated with God over the number of times that the followers will pray. Muhammad managed to reduce the number from the initial fifty times a day down to five, using as his main argument the necessity to leave enough time for people to do things other than pray. Throughout history, individuals and groups used a variety of ways to resolve their disputes, trying to reach a resolution acceptable to all parties. There is a 2 common belief in all cultures that it is best to resolve disputes and to reach an agreed end to them, because conflict is a destructive force. In the wentieth century many reached the understanding that disputes are normal in human society, and not necessarily destructive, and that if they do not get out of hand they may have within them a potential for growth, maturity, and social changes, an opportunity for new ways of thinking and new experiences. Because conflicts are an integral part of human interaction, one should learn to manage them: to deal with them in a way that prevents escalation and destruction, and arrives at new, innovative, and creative ideas to resolve them. Much can be learned about the different ways in which conflicts have been prevented in the past.
In older societies, resolving disputes was considered a unique ability reserved for the wise and the elders of the community or for religious leaders. More recently, conflict prevention has become a primary focus of interest for everyone, and this has resulted in an ever-expanding field of study and practice. The field of conflict resolution gained momentum in the last three decades of the twentieth century. It has developed into a widely accepted field of study, where skills and strategies are being taught, and changes in philosophical attitudes occur through training and enhanced self-awareness.
The increasing academic activity and practical training initiatives have generated a vast and expanding body of research and publications. The field is characterized by diversity and complexity. It is diverse because conflicts exist in every facet of individual and social life: between business partners, employers and employees, among employees, between trading partners, among neighbors, between parents and their children, husbands and wives, an individual and society, and between countries.
The field of “conflict resolution” has matured as a multidisciplinary field involving psychology, sociology, social studies, law, business, anthropology, gender studies, political sciences, and international relations. The discipline is complex because it deals with conflicts at different stages of their existence, and also because it is a mix of theory and practice, and of art and science, as Howard Raiffa demonstrated so brilliantly in his book The Art and Science of Negotiation (1982). The “science” is the systematic analysis of problem solving, and the ”art” is the skills, personal abilities, and wisdom.
Some conflicts may not be resolved easily, and can last many years. Sometimes these conflicts persist in spite of the fact that they cause heavy losses of resources, and even human life. According to a study at Stanford University (Arrow et al. , 1995) there are three categories of barriers to resolving conflicts: ? ? ? Tactical and strategic barriers; these stem from the parties’ efforts to maximize short or long term gains. Psychological barriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another.
Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that are in the interests of the parties in dispute. A conflict may store within it the potential for a future major dispute, but at the same time it also contains the possibility of future creative cooperation, provided the parties seek what is called the “win–win solution. ” To accomplish this, one must learn to negotiate in a manner that is less competitive and adversarial, thereby invoking the potential for cooperation.
By working together as “joint problem solvers” seeking joint solutions and not working against one another, the participants can “enlarge the pie” that is to be 3 divided. This can be done either by negotiation, or with the help of an impartial third party who will act as mediator. Third-party intervention is used when a negotiation reaches an impasse. It is used to restore belief in the possibility of a beneficial resolution for the parties, future dialogue, and restored relationships, while leaving the control over the decisions with the parties.
President Carter acted as a mediator between President Sadat of Egypt and Prime Minister Begin of Israel. Former US Senator George Mitchell acted as a mediator in Northern Ireland. An outside third party, whether a person (Archbishop Desmond Tutu), a group of people, a representative of a state (Henry Kissinger), or an international organization (The Vatican, The UN) can act as a mediator, in an attempt to help the parties reach an understanding, and an agreed solution to the conflict.
A third party, a neutral, can also act as an arbitrator, hear the parties’ arguments and reach a decision which can be binding, or non-binding according to the agreement made beforehand. A dispute between Israel and Egypt over the location of the border between the two countries in the Gulf of the Red Sea was settled in favor of Egypt by an international arbitration panel, on September 29 1988. Israel had to return the town of Taba, a resort town near Eilat, to Egypt as a result of the arbitration.
Adjudication is another method that can be used as an alternative in the international arena (The International Court in The Hague) and in the national local system. The courts have the ability to enforce the law in the case of a failure of the parties to reach agreement through negotiation or mediation. There is a law, and a way to enforce it without the consent of the parties. In international disputes, where states are involved, when problems arise due to opposing interests, such as security and/or resources, an outside enforcer cannot act where it is not acceptable to one or more of the parties involved.
Ruling by the International Court can end the conflict only if the two countries agree to abide by its ruling. Conflict prevention, de-escalation, management, and resolution can all be applied to conflicts involving water. The choice of the applicable process will depend on the particular circumstances and context of the water conflict. We will examine each of these key processes and than review their potential role in water conflicts. 2. THE ADR (ALTERNATIVE DISPUTE RESOLUTION) SPECTRUM
On the spectrum between an agreement reached by the parties by direct negotiation, based on mutual understanding, and a binding decision rendered by a third party’s authority in a procedure of adjudication, there are many other ways of dealing with disputes. These options and possibilities create “a menu” of alternative or appropriate dispute resolution (ADR) that parties may choose to use, with the intent of removing a potential source of conflict, preventing its escalation into a dispute, and finding the way back to a constructive cooperative and a potentially productive future working relationship.
The ADR “movement” started in the United States in the 1970s in response to the need to find more efficient and effective alternatives to litigation. Today, ADR is 4 flourishing throughout the world because it has proven itself, in multiple ways, to be a better way to resolve disputes. The search for efficient and better ways to resolve disputes, and the art of managing conflicts, are as old as humanity itself, yet it has only been within the last thirty years or so that ADR as a movement has begun to be embraced enthusiastically by the legal system.
More recently, ADR has become institutionalized as part of many court systems and system for justice as a whole throughout the world. The first ADR method to gain acceptance was arbitration, which shared many of its practices and procedures with the judicial system, including the judge (or arbitrator) deciding the outcome of the dispute. ADR has matured and developed, and mediation is being received as a preferred alternative and has become widely accepted as a process providing more flexibility and less procedural complexity.
The US Federal Civil Rights Act (1964) led to the formation of the CRS (Community Relations Service in the US Department of Justice), which was mandated to help “communities and persons therein in resolving disputes, disagreements, or difficulties relating to discriminatory practices based on race, color, or national origin” (Moore, 1996). “Mediators” were asked to assist in resolving disputes of any sort, and not only to deal with issues of discrimination (Goldberg et al. , 1992).
The US federal government funded Neighborhood Justice Centers (NJC), provide free or low-cost mediation services. Throughout the United States and other countries, the courts became involved in mediation, following Professor Frank Sander’s (Harvard University) vision of a courthouse that would become a dispute resolution center – a “multi-door courthouse” – where each case would be referred to a process most appropriate to it. The NJC’s became part of a city-based, court-based, or district attorney-based alternative dispute resolution service.
The American Bar Association took a proactive role in the process and created CPR – The Center for Public Resources center – which provides ADR services. Following an act of Congress (1990), federal agencies are obligated to use mediation in certain civil cases before going to court. Many states passed a law requiring mandatory mediation. In the private sector, many large US and multinational companies signed a mediation pledge, according to which they use mediation before going to court. Several countries are experiencing similar growth while continuing to develop new and creative ADR processes and applications.
Canada, New Zealand, Australia, and the United Kingdom have become pioneers in the field. In the United Kingdom, the Advisory, Conciliation and Arbitration Service (ACAS) was set up in 1974 to deal with industrial disputes, and at the end of the 1980s commercial mediation services became available, corresponding to the Lord Chancellor’s statement in a television interview, “Mediation and other methods of resolving disputes earlier, without going to court, produce satisfactory results to both sides are, I think, very much to be encouraged” (Acland, 1990).
The ADR movement has been gaining popularity, and a movement that started as an answer to needs of the judicial system, has generated interest in a variety of fields (such as education, society, environment, international, and gender concerns). In the 1980s, the US National Association of Mediation in Education (NAME) was founded, and a large variety of ADR programs, including negotiation, problem solving, and mediation was introduced in schools.
A variety of skills and techniques are taught: communication skills, different approaches of managing conflicts effectively, tracing needs and real interests, moving from positions to interests, how to deal with intense emotions, re-framing, open questions, and so on. The expansion of these programs and practices in education is becoming increasingly widespread. In 1997, there were over 8,500 school-based 5 conflict resolution programs in the United States, taught in over 86,000 public schools.
Alongside the search for ways to solve or manage diversities that turn into disputes and help people manage/solve existing disputes, advocates of ADR emphasize the need to develop and use the skills resulting from diversity that can help to prevent the escalation of disputes; this can be done by using joint problem solving in conflict situations, in order to enhance cooperation for the improvement of future relations. 3. NEGOTIATION: PRINCIPLES AND PROCEDURES Goldberg, Sander, and Rogers in Dispute Resolution: Negotiation, Mediation, and Other Processes (1992) define negotiation as “communication for the purpose of persuasion. Negotiation is a process in which parties to a dispute discuss possible outcomes directly with each other. Parties exchange proposals and demands, make arguments, and continue the discussion until a solution is reached, or an impasse declared. In negotiations there are three approaches to resolving the dispute, each with a different orientation and focus – interest-based, rights-based, and power-based – and they can result in different outcomes (Ury et al. , 1993). INTEREST-BASED NEGOTIATION This approach shifts the focus of the discussion from positions to interests.
Because there are many interests underlying any position, a discussion based on interests opens up a range of possibilities and creative options, whereas positions very often cannot be reconciled and may therefore lead to a dead end. The dialogue on interest should be transparent, in order for the parties to arrive at an agreement that will satisfy the needs and interests of the parties. While interest-based negotiations have the potential of leading to the best outcomes, the parties may not adopt it, and therefore we often find that negotiations are “rights-based” or “power-based. ” RIGHTS-BASED NEGOTIATION
When negotiations between parties fail, the parties may then attempt to resort to what they consider to be their rights. This means appealing to the court (local, national, or international) and will result in a legal process in which the law is the dominant feature. POWER-BASED NEGOTIATION Resorting to threat or even violence as a way of communication for the purpose of persuasion is called power-based negotiation (for example, the posture of the Americans in the Cuban missile crisis). Rights-based and power-based approaches are used at times when parties cannot or are not willing to resolve their issues through interest-based negotiation. . 1. Competitive and Integrative Models Negotiations are characterized by polarity between two extremes: ? ? Competition – Cooperation Opposing interests – Common interests Competition and opposing interests lead to a requirement by the parties to divide the assets or resources under dispute. They lead to “dividing the pie” or “claiming value,” 6 in other words a “zero-sum game. ” On the other hand, when negotiations are based on cooperation and identification of common interests, this can lead to seeking opportunities for “increasing the pie” (which is also called “creating value”).
When negotiations are based on common interests, cooperation, and joint problem solving, this is called the “integrative or collaborative model. ” This model was developed at PON (the Project On Negotiation) at Harvard University in the early 1980s. It is useful for parties to negotiate over a number of issues or resources, since they can try to create value and maximize benefits by trade offs between them. This is because the order of priority among these issues for one party may differ from that of the other and provide an opportunity for exchanges.
Therefore, the parties find ways to increase gains through creativity, originality, and linkage between issues to enlarge the overall pie, thereby creating value. To provide an historical example of the difference between positions and interests, consider the issue of the Sinai in the dealings between President Anwar Sadat of Egypt and Prime Minister Menahem Begin of Israel, in the wake of the 1967 Six Day War. Each leader claimed that the territory of the Sinai, taken over by Israel in the war, belonged to his nation. This was their stated position.
President Jimmy Carter, acting as mediator, interrogated the two leaders as to their interests, and identified them as follows: Egypt wanted sovereignty over the territory, in line with the national position that Egypt would not yield control over the territory which it considered to be its own; Israel’s interest was to have guarantees of security on its border with Egypt, in view of the threat it had been facing on this border previously. President Carter then proposed that the Sinai would be returned to sovereign Egyptian rule, but would remain a demilitarized zone.
This creative solution satisfied the interests of both sides, and was therefore agreed. The principles of the interest-based model can be used in any type of negotiations: from buying a car to resolving a conflict between the United States and Mexico over water, and from buying a company to dealing with the selection of a site for building a wastewater treatment plant. Negotiation based on “rights” or “power” fall under the “adversarial, distributive, or competitive model,” where the parties try to get the best deal for themselves at a cost to the others. A gain for one side means a loss for the other.
Living in a society in which competition is part of the daily experience, we tend to think of competition as the only way to reach our goals. Competition is almost always at the expense of someone else. In the “conventional way,” a negotiation is “zero-sum game” – whatever one side wins the other side loses. Both of the parties assume that it would be best to ensure that they end the negotiation at the positive side of the equation. 3. 2. Principles “The reason to negotiate is to produce something better than the results that you can obtain without negotiation” (Fisher et al. 1991). The goal is to reach an agreement that is acceptable to all parties, to which they remain committed, and which they indeed implement. This is the essence of interest-based negotiations, which has the following principles: 7 INTERESTS–NEEDS Interests are needs (food, shelter, security, and so on), desires, aspirations, fears, hopes, and concerns. Positions are what we want and demand. The interests are the reasons behind the position. In negotiating on the basis of interests, parties will need to: ? ? ? distinguish between positions and interests move from positions to interests list all the interests according to priority think of positions as only one of many solutions to the problem. ALTERNATIVES Alternatives are those actions that one can take outside the negotiations, alone or possibly with a third partner, but without the party with whom one negotiates. The alternative that yields the best outcome for you is called the BATNA (Best Alternative To a Negotiated Agreement). The BATNA is the “best alternative to a negotiated agreement. If any of your alternatives without negotiation is better than the deal on the negotiating table, you will obviously go to the best alternative. If however the deal on the table is better than any of your alternatives, it will be your BATNA. It is important to make sure that the alternatives are indeed realistic, and try to improve your BATNA, because the BATNA influences the way in which you conduct the negotiations. Having a BATNA provides us with the ability to negotiate effectively, and provide the answers to the following: ? ? ?
What are our alternatives if this negotiation reaches a dead end? Do we have an alternative at all if the negotiations fail? Which agreement do we consider (the one which is at least as good as our BATNA)? OPTIONS This is the range of outcomes that the parties agree to consider during the negotiations. Options are outcomes that can enlarge the pie and create value with little or no extra cost to the parties. In developing the options use the following criteria: ? ? ? Use brain storming among the parties to generate a list of options.
Look to the interests in order to generate a broad range of options to choose from. Include options that will answer both parties’ needs and interests. STANDARDS AND CRITERIA Objective standards and criteria can be used in the negotiations to enable both parties to perceive the process as fair and legitimate. Objective standards and criteria include: ? ? ? ? ? market value of an asset or a resource the law regarding the matter being discussed precedents opinion of an expert priority of human water consumption over other users (in water issues). 8 COMMUNICATION
This refers to all the means by which the parties communicate with each another, including spoken words, level and tone of speech, body language, and any other means that parties use to signal to one another. This is important because part of the message is not just the words, but also in the manner in which it is delivered. To consider these aspects one must: ? ? be attentive to all signals of communication speak clearly and exercise “active listening” (discussed in Section 3. 3: Skills). RELATIONSHIP This refers to the interpersonal and intergroup dynamics between all the parties to the negotiation.
Proper consideration of these elements requires that one: ? ? Separate the people from the substance; that is, do not allow oneself to become personal, but stick to the matters being discussed. Consider that there are differences in the way in which people in other cultures value interpersonal relationships as a precondition to holding negotiations. AGREEMENT AND COMMITMENT An agreement should be specific, realistic, operational, clear, and understood by all parties. It should be specific as to who will do what, how, when, and where. In the agreement the parties should commit to what they have agreed.
Before signing an agreement one should ask: ? ? ? ? ? Does the agreement anticipate future contingencies, to avoid surprises and disappointments that may result in motivation not to uphold it? Do we have the authority to sign this agreement? Does the other side have the authority to sign this agreement? Do we want a tentative agreement, subject to final approval? Do we want an interim agreement that covers only part of the issues and leaves the rest for a further and final agreement? In interest-based negotiation one should strive to reach an agreement that will satisfy: ? all or most of our interests, and the other parties’ interests in a way that will be acceptable to them. One needs to ensure that the other parties’ interests are met to a degree that will satisfy their interests because their interests are inextricably tied to one’s own and both needs have to be met in order for the agreement to hold. Be cognizant of parties that are absent from the negotiations who will be affected by them or have an influence on their outcome. When Israel signed the contract with the Chinese on the Falcon aircraft, the agreement was satisfactory to both parties, the Israelis and the Chinese.
Israel just forgot the third party – the United States – which was not interested in selling know how to the Chinese and objected to the deal. As a result, the agreement fell through, and Israel had to compensate the Chinese for not fulfilling the agreement. 9 3. 3. Skills COMMUNICATION SKILLS: ACTIVE LISTENING This is one of the most important and difficult skills for a negotiator and a mediator. Active listening as a skill and technique are taught to, and applied by, negotiators and mediators to enhance their effectiveness during the process.
Active listening means stopping our inner voices, and truly listening to the other person. Listening will enable you to hear important information, and learn a great deal about the other party. By listening attentively you: ? ? ? ? ? Show interest in what the other party has to say. Show understanding to the way they feel, their positions and underlying issues, hidden agendas, demands, and priorities (showing understanding does not mean that you agree with what was said). Acknowledge that people like to be listened to, and when you listen, you create a positive atmosphere.
Hope it may clarify many issues; make you understand the other side’s point of view, and show respect to the other party’s needs, hopes, and fears. Hope it may help to improve the relationship, and break the cycle of arguments. COMMUNICATION SKILLS: TALKING CLEARLY AND PRECISELY Effective negotiation is also making sure that whatever you said was understood in the way that you meant it to be. You have to speak clearly, phrase your sentences carefully, make sure that the other party listens to you, and check with the other party to make sure that they understood you correctly.
Send messages that are comprehensive, and explain where you are coming from, your needs, hopes, and fears. While talking you have to assess if the other party is listening, and how they hear/receive your message. RE-FRAMING POSITIONS AS INTERESTS Re-framing is a way of giving feedback, and showing that you listened and understood what the other party said. It is restating and capturing the essence of what the other party said. One removes the negative tones, and translates the statements of positions into statements of interests and needs. When we start negotiating we have to identify the issues at the table.
The issues have to be defined in a neutral and acceptable way to all, and not include any suggestions of the outcome, or judgment of any kind. Typically, parties start the negotiation process by stating their position, and their conclusion of what to do based on it. If the one party opens the negotiation in this manner, that is, by stating a position, it is very helpful to re-frame it as an interest. It helps the parties to identify their interests, and move from position to interests. The supplier to buyer at the municipality: “I am not going to supply you another pencil before I see some payment for my last shipment. The buyer: “So, you need a business that can pay you regularly for your supplies. ” UNDERSTANDING AND PERCEPTION The negotiation process is influenced by our perceptions and our interpretation of reality. Perceptions are influenced by personal experience, emotional state of mind, and cultural background. 10 Perception, as shown in Akira Kurosawa’s film Rashomon (1951), varies from one individual to another; we know that four different people who witnessed the same murder may give four totally different accounts of what happened.
The negotiator and mediator have to keep eye contact, listen carefully, and make sure that they understood exactly what the other party said. It is important to reframe what was said in order to make sure that what was said was understood and was indeed what was meant. Make sure that what was said was understood correctly, and that the other party knows you have understood. “Let me make sure that I understood what you said, when you said that we should go ahead with our plans: does it mean that you will be a full partner, or just our contractor? When you negotiate in India and the other party nods his head up and down, does it mean “yes”? In India it means “No. ” OPEN QUESTIONS Questions are an essential skill for the negotiator and mediator. When asking a closed question, we get “yes” or “no” for an answer. Often these types of questions are also leading questions “Would you agree that . . . ” “Didn’t you think that it was unfair . . . ” The closed questions, and the leading ones, do not provide us with the essential information we need at the negotiating table and they tend to close down the discussion. Do you want to buy this property? ” will provide us only with a “yes–no” answer, which does not include all the important information regarding the intention/ability of the buyer. “What are the problems that concern you? ” is a question which will provide us with important information as to how they feel about it, what are their concerns, their plans, and so on. “How do you view the offer Mr. Brown has just made? ” is an open-ended question, while “Do you like Mr. Brown’s offer? ” is a closed question.
Open-ended questions such as: “What are in your opinion the possible advantages and disadvantages regarding his offer? ” or “What would you need to clarify prior to your counter-offer? ” provide us with important information that can help the process rather than bring it to a dead end. You have to be aware of your prejudices, values, and biases when you ask the questions, so that if you have any they will not be evident from your tone or body language. SEPARATE THE PEOPLE FROM THE PROBLEM It is important to understand the other party’s point of view, needs, interests, and concerns.
One does not have to agree with the other point of view, just understand that it is legitimate to have a different point of view, needs, and concerns. One has to separate the people from the problem. Removing the person usually does not remove or solve the problem. However, trying to separate the person from the problem is not always practicable. There are societies in which personal relationships have a very high value, and separating the two is difficult. 11 3. 4. Cultural and Identity Aspects International and ethnic conflicts have within them components that are intangible, hard to define and to identify: culture and identity.
Without recognizing them, and dealing with them, the negotiation or mediation has little chance of success. Faure and Rubin (1993) define culture as “a set of shared and enduring meanings, values, and beliefs that characterize national, ethnic, and other groups, and orient their behavior. ” There are cultural differences between the individual and the collective. There are countries and cultures that stress the high value of collective responsibility and commitment to the group, while in others the stress is on individualism and responsibility to oneself.
The Sulha is the Arab traditional way of conflict resolution. It works because of the collective responsibility of the extended family (hamula). This responsibility and commitment to preserve the honor and reputation of the family prevents all members of the family (even those who did not participate personally in the ceremony, and future generations) from breaking the customs and laws of the Sulha (Jabur, 1993). The Sulha is usually used in disputes such as family honor, killing, physical harm, or maiming.
In desert areas and arid zones we find the use of the Sulha also in water disputes, as among the Bedouins in the south of Israel and the Berbers in Morocco. “Both Berbers and Bedouin follow this Islamic practice of a ritual ceremony of forgiveness. Once the ceremony is performed, the dispute may not be discussed – it is as if it never occurred” (Wolf, 2000). It is an effective and efficient way of resolving disputes in these communities. Even in cultures with a high degree of collective responsibility (such as Japan and China), we find cases where individual goals are opposed to the collective ones.
We recognize the existence of sub-cultural differences in religions, organizations, and gender, and within various groups of professions (doctors, engineers, and so on). People who work in teams seem to demonstrate a collective responsibility, more so than pilots or athletes such as long-distance runners who are used to working individually. It is possible that the subculture of a hydraulic engineer as a professional person, will clash with his/her national culture of a certain belief and attitude towards water as a symbol.
Culture is a very complex but important component, which should be taken into account in negotiation because it influences our perception of the world, our set of values, our actions, our decisions, and the results of the process. When negotiating with people, one should keep in mind that negotiators have different personalities, they come from different backgrounds, carry certain values and beliefs, and that the differences in their culture can be manifested in several ways. One has to be aware of the many factors which may impact the negotiation: time, language, body signs, style, space, symbols, social and collective esponsibility, and the tradition of the social system. The Umatilla Basin conflict was over reserved water rights of the Indian Tribes for protection of the flow for fisheries, and for the use of the water by non-Indians for irrigation. This conflict over water rights not only carried within it the economic issues, but also had significant religious and cultural importance for the Indians, which had to be taken into consideration for the success of the consensus building process. (http://www. umatilla. nsn. us/basin. html) 12
The cultural aspect is evident in ethnic conflicts within a country, and between nations. Negotiators from different cultures will value the element of time and space differently. Negotiators from some cultures are task-oriented and want to conclude the deal, while others are relationship-oriented, and will not reach an agreement before getting to know, and creating a relationship with, the other party. Some negotiators perceive the negotiation process as a zero-sum game, a competitive process, while others will view it as a cooperative, joint problem-solving process.
Some may come from social systems where force and power determine the results of the negotiation, and some from cultures where women are not accepted as negotiators. Culture is manifested in the behavioral styles of nations or communities, norms of behavior, hierarchies of social system, and social behavior. Negotiation can fail because one party is not sensitive to these cultural differences, or to the special communication style and decision-making pattern of their partners. Identity as defined by J. Rothman “is people’s collective need for dignity, recognition, safety, control, purpose, and efficacy. Many conflicts carry within them identity issues, and these conflicts may last many decades and be very destructive domestically (the conflict in Northern Ireland) or internationally (the conflict in Yugoslavia). Many international and group conflicts contain identity-based interests and needs that were not fulfilled (Rothman, 1993). These types of conflicts are very difficult to resolve and often require the assistance of a third party, acting as a facilitator/mediator. Sometimes a team of facilitators/mediators is used.
The approach to resolving cultural and identity-based conflicts is a combination of interest-based negotiation and the process of dialogue and consensus building. The “third party” would help to identify the parties to the negotiation and decide who the participants will be; conduct a conflict assessment by identifying the major issues and interests of the parties; and identify the reasons and motivation for participating and resolving the conflict. Because the process is voluntary, one has to: ? ? ? ? Understand the needs of the parties to participate. Build confidence in the process among the parties.
Design the process as one that is open and honest. Provide equal access to data and information to all parties in order to build confidence in the process and the participants, facilitate their dialogue, assist in generating many creative options, and come to a consensus on the best option(s) and a solution acceptable to the parties. It is then the responsibility of the parties to implement the agreed solution. These tasks may take place over an extended period of time, depending on the ability and willingness of the parties to work for mutual gain, and the nature and complexity of the negotiation. 3. 5.
Psychological Aspects The psychological attitude of individuals to negotiation, their personal perceptions, past experience, and expectations are manifested in rational or irrational decisions, which have an effect on the outcome of the negotiation. When people engage in negotiation there are emotions involved that affect their attitude and actions. Anger, hurt, revenge, hope, and fear are all feelings that one brings to the negotiation table, and these feelings influence the process and have an impact on the outcome. These feelings have to be dealt with by the parties in order to reach a rational decision and resolve the dispute. 3 Negotiators arrive at the negotiation table not only with their personal feelings, but also with their personal tendencies and analysis of the situation. For example, the negotiator can be loss or risk averse, overconfident and optimistic, or unrealistic about the uncertainty of the negotiation outcome. These tendencies influence their behavior, and create obstacles, which may lead to unreasonable decisions (Tversky and Kahanman, 1995). Some negotiators tend to assume that it is best not to disclose information if they want to succeed in the negotiation.
Parties are sometimes too concerned with the fear of “being taken advantage of” to be able to think of the negotiation in terms of “joint problem solving. ” Parties in a competitive negotiation may be indifferent to the gains of the other, but more often this competitiveness leads the parties down an emotional path where minimizing gains or causing a loss to the other party becomes the goal, even at the expense of their own interests. Many negotiators assume that the “pie is fixed” and therefore negotiate over position and not interests.
The “fixed-pie bias” can prevent the parties from taking advantage of opportunities to enlarge the pie (Birk and Fox, 1999). 3. 5. 1. Psychological Traps Wanting to look tough and consistent in the eyes of the other party, and finding it important to prove – to themselves, to the constituencies at home, or to others – that one was right acting the way one did, may be a trap. It is common for negotiators to focus and react to the other party and their attitude, moves, and tactics, rather than focusing on a strategy that would advance their own needs and interests.
In many cases, this commitment to a course of action they started will be at a cost and will not achieve their own goals. As time moves on, parties to the negotiation feel that they have too much time, money, and ego invested, and backing off becomes less and less of an option (Bazerman and Neal, 1993). Both sides will often start with extreme demands, expecting to compromise somewhere in the middle. Getting caught up in the struggle, not wanting to be the first to “blink,” toughens the negotiation and makes both sides become more entrenched in their initial position.
Parties may wish to impress the others by acting strong, being consistent, and making sure that they will not be taken advantage of. This also involves a notion that negotiators adopt in the line of showing strength: if you have doubts – be overconfident. This, and the need to be in full control, does not allow the questioning of one’s positions or the development of an ability to view things from different perspectives and consider different, sometimes more productive, approaches that would advance the negotiation.
Being committed to a certain position or course of action creates a bias in favor of the data consistent with this specific course of action. One is ready and able to “hear” data and information that will support this position, but not open to hear or accept new ideas. This course encourages the parties in further self-persuasion and rationalization concerning the correctness of their positions. It also entails holding on to one’s positions without looking more deeply into the initial interests that may contradict the positions displayed.
This attitude will lead the parties to miss opportunities to create options (or find a trade off) that might enlarge the pie and benefit both sides. Some negotiators would prefer to leave issues open or unresolved, and would even create a dispute rather than think they were defeated or were forced to make concessions. Instead of taking the risk of cooperating, some people would prefer the risk of competing, hoping to “win. ” Research indicates that many negotiators will choose a small sure win over a risky larger win (Bazerman, 1986). 4 Research indicates that people become more entrapped when: ? ? ? They are especially anxious about their appearance in the eyes of others. They believe their effectiveness is judged and criticized by others (Rubin, 1981). They tend to interpret the other party’s offer of concession as a sign of weakness. This tendency makes one suspicious towards gestures of a constructive nature. Concession may be perceived as a “too easy gain” and rejected, while demands that are rejected or denied would be perceived as important.
It is important to evaluate rationally what it is that one is about to lose or sacrifice. In many cases, an offer of concession may be perceived as an opportunity to demand and gain more, and instead of responding in a constructive manner, it leads to further toughening one’s positions (Ross and LaCroix, 1996). Other points that should be borne in mind are: ? ? When one is on a non-constructive course, the tendency is to expand and escalate. Conflicts independent of their initiating causes are developed, and are likely to continue after the initiating causes have been solved (Deutsch, 1973).
Negotiators should try and search for the issues that both parties share in common, rather than the issues that would further expand the differences and create more barriers and dichotomies between the parties, misinterpretations of the other’s line of thought, and reduction of their own ability to resolve the dispute. The non-cooperative way of perceiving negotiation is not necessarily an outcome of people’s personality or character, but part of the western competitive society. It may be due to the fact that the parties o not know another way. ? In the “cooperative approach” it is important to share interests that will enable the parties to see the picture as a whole, evaluating the issues and interests, so that an agreement will be reached that will be acceptable to all parties, and not leave any ungarnered gains on the negotiating table. All parties have to understand that they have a common stake in the situation and that there is more to be gained by negotiating and exchanging ideas than by competing.
A basic motivation in an “interest-based negotiation” is to collaborate for the mutual benefit of all parties. Putting one’s needs and interests on the negotiation table includes the presupposition that the other party is willing to take them into account and show understanding of those needs. Realizing that even opposing needs can be dealt with in a different way may lead to some creative new ideas. A well-known example that best describes the idea of the cooperative, integrative approach to negotiation is Mary Parker Follet’s story of the two sisters who both wanted the same orange.
A non-cooperative but reasonable solution would be to cut it in half, each of the sisters getting her share. But, underestimating the true needs and interests of each of the sisters, it is revealed that while one wants to squeeze the orange in order to drink its juice, the other is aiming for its rind, planning to bake a cake with it. In this case it is possible to reach a solution that allows each of the sisters to gain more than by the presumably reasonable solution of cutting it in half (Fox and Urwick, 1973). 15
In more complex situations, where the parties plan on future cooperation, a truly integrative negotiation would lead not only to a mutually agreed solution, but enlarge the pie by not leaving joint gains on the table. To reach an innovative solution, trust has to be gained. Trust makes it possible to open up consideration of the other party’s perspective, needs, and interests. Sharing information, discussing concerns, talking about needs, and developing ways of thinking together will create a cooperative mode for a joint problem-solving negotiation process.
Learning the strategies and techniques of interest-based negotiation, and understanding its benefits, make it possible to transform not only the approach towards negotiation, but also people’s perception of the way one should deal with conflicts. In many cases, where suspicion and mistrust are involved, where the dynamic is negative and destructive, and the negotiation process has come to a standstill, it is beneficial to use a neutral third party, a mediator, who will help facilitate the negotiation process. A third party’s presence may help to change the atmosphere.
In the presence of a neutral, some of the antagonism and suspicions may be transformed into rational evaluation of the situation, helping to overcome the distrust in order to cross barriers that stand in the way of resolution. 3. 6. International Negotiation In past decades, only diplomats conducted international negotiation and agreements between countries. Negotiating today is not restricted to the diplomatic corps; it involves professional people, experts, non-governmental organizations, local interested groups, local authorities, and international entities, all of which have an impact on the process.
Cultural issues play a major part in international negotiation, and have a significant impact on it. A strong personal relationship and trust between the negotiators can be a positive force in future agreements. Issues such as personal relations, time, sovereignty, face-saving, mode of bargaining, and hierarchy, which are culturally based, need to be considered during negotiations between different nations, societies, and ethnic groups. Today it is realized that conflicts and the issues involved are very complex, the outcomes are far reaching, and can often affect other nations, a region, or the world.
The international negotiation process is more complex, because of the various interdependencies between countries, cultural issues, and past history, and the fact that individual people, or a group of people negotiate on behalf of a collective. Their culture, psychology, emotional state, behavior, ethics, values, and private agendas may affect the outcome of the negotiation. In the past decades the world has become one global village. Distances are smaller, communication means are easier and faster, and the economy has become a major factor in international relations.
A conflict between two or more countries may affect a whole region. The conflict in Yugoslavia had an adverse effect economically on the shipping and transport industry on the Danube, with very heavy financial loses for countries such as Hungary, Ukraine, Germany, Romania, and Austria, which were not connected with the conflict in Yugoslavia (Egglestone, 1999). The Israeli–Palestinian conflict affects the whole region, especially the economy and political situation of Israel and the Palestinian Authority, but also neighboring countries such as Egypt and Jordan that are negatively affected. 6 A conflict in one country may affect many markets around the world, as dependency between nations, economies, and international institutions – along with conflict situations – has increased. The terrorist attack in New York on September 11 2001 had a serious economic effect not only on the US but also on the global economy. We live in a new and changing world, in which negotiation plays a major role in resolving these conflicts. The bilateral arena is simpler than the multilateral arena because of the fact that there are only two adversaries with conflicting interests.
The multilateral arena is a very involved one because of the fact that there are a number of parties, and many issues and interests at stake. The parties have to manage this complex situation by simplifying, structuring, and deciding on the priorities of issues. They have to manage the proceedings, and the orientation that will provide a direction toward a mutually agreeable outcome (Zartman, 1994; see also article by Young in that volume). In the process of negotiation between countries, or international entities, one nation often needs to build a coalition with others to achieve its goals.
The parties to the coalition do not have necessarily the same interests, priorities, or values, but have some similar objectives. Countries who try to form a coalition often use power, economic or military dependencies, and other strategies to induce other countries to join the coalition. The United States built a coalition with many countries during the Gulf war, and in the war against terrorism in Afghanistan. Coalitions are created by negotiation with the countries one wants as allies and partners, against another country (Watkins and Rosegrant, 1996).
Turkey, while in conflict with Iraq and Syria, has created an economic and military alliance with Israel, buying military equipment from Israel, and is willing to sell water to Israel, while Syria, who in the past had a conflict with Iraq, strengthened her economic ties with that country (Francona, 1999). www. suit101. com/article/ctm/28688 Parties can form coalitions that may change in time, and with them the issues and interests may shift in the ladder of priorities. Multilateral agreements are always reached by consensus.
Bangladesh, which formed a coalition with India who helped in gaining its independence from Pakistan, is threatening to cancel the Treaty of Friendship with India because of the issues of reduced quantities of water and increased salinity in the water, which endangers the existence of millions in Bangladesh (Frederick, 1996). Often countries negotiate over issues that influence directly the local/domestic publics. These publics may determine the outcome of the negotiation by supporting or 17 opposing an agreement.
It is important for a country to reach a consensus with the local domestic entities before an international agreement is reached. The Dutch nurseries and the Pure Water Institution sued the Alsace Potassium Co. ; the fact that there was a lawsuit against a French company influenced the French Government in their decision to ratify the 1979 Chemical Agreement (Haftendorn, 1999). 3. 7. Negotiations Over Water An increasing number of states are experiencing occasional or lasting water stress, yet in most cases mechanisms and institutions to manage disputes over water resources are either absent or inadequate.
Competition over this precious resource could increasingly become a source of tension – and even conflict – between states and sectors. History has often shown that the need for freshwater can cause different users to cooperate, rather than allow confrontations that could jeopardize the water supplies. Competition may arise between different groups or sectors (agriculture and cities), between countries (upstream–downstream), and over allocation and use of water between urban development and the environment. Water Conflicts can be resolved in various ways: ? ? Force: a decision imposed by force on one or more of the parties. Adjudication: a decision rendered by an authority, state, institution, Court of Law, or Special Master. Some states assign a “Special Master” who will act as a judge or arbitrator in water disputes. Negotiation: a decision requiring an agreement among the parties. The tendency for resolution in the world today is to use interest-based negotiation and mediation, equitable and reasonable use of water, and reach an agreement where the parties will jointly manage the shared water resources. . 7. 1. International Water Negotiations/Conflicts Water has always been an integral part of a nation’s history, religion, and culture, and carries an important symbolic importance. Problems and disputes over water in the national and international arena are a fact of life. Water, as a scarce resource, has always been a reason for conflicts between people, communities, and nations. Conflicts over water exist in many parts of the world.
These conflicts can arise nationally and internationally and are due to the competing needs for and utilization of the water: drinking, irrigation, transportation, flood control, hydro-electricity, fishing, recreation, and the environment. Conflicts can arise between riparians situated upstream – who control the sources – and those downstream, who are at a disadvantage (e. g. the Nile, Sudan and Egypt), between those on the two banks of a river (the Parana River between Paraguay and Brazil), or around a lake (Lake Chad and The Sea of Galilee).
Conflicts arise because of a range of issues. QUANTITY Concerns over quantity arise when the resource is not sufficient to meet all the needs of the riparian countries, frequently because of rising demands due to population growth and improved standards of living. A country upstream, which controls the source, often claims sovereignty over the water, resulting in a conflict with the downstream countries. 18 Turkey claims sovereignty over the Euphrates and Tigris rivers, and started the GAP project, which will be beneficial to Turkey.
This is a source of concern to Syria and Iraq downstream, and has resulted in tension with Turkey. (http://www. mfa. gov. tr/grupa. ad/adg/adgc/html) WATER QUALITY AND POLLUTION When upstream countries cause the pollution of a river and degrade the quality of the water reaching downstream riparians, water quality and pollution can cause conflicts between the users. Many countries along its route use the river Rhine. Pollution of the river has been caused by the chemical industries of Germany, Switzerland, and France, and the shipping industry along the river.
The shipping issue was resolved in 1950 by creating an International Commission. The chemical pollution imposed a burden on the Netherlands, who