Negotiation-Mode Of Alternative Dispute Resolution

Negotiation is self counseling between the parties to resolve their dispute. The word "negotiation" is from the
Latin expression, "negotiatus", past participle of negotiare which means...

Author Name: ranganathvg@legalserviceindia.com

Negotiation is self counseling between the parties to resolve their dispute. The word
"negotiation" is from the Latin expression, "negotiatus", past participle of negotiare
which means...

Negotiation-Mode Of Alternative Dispute Resolution (ADR)

“Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the
lawyer has superior opportunity of being a good man. There will still be business enough”. Abraham Lincoln

Alternative dispute resolution (ADR) (also known as External Dispute Resolution in some countries, such as
Australia) includes dispute resolution processes and techniques that act as a means for disagreeing parties to
come to an agreement short of litigation. Despite historic resistance to ADR by many popular parties and their
advocates, ADR has gained widespread acceptance among both the general public and the legal profession in
recent years. In fact, some courts now require some parties to resort to ADR of some type, usually mediation,
before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing
caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for
confidentiality, and the desire of some parties to have greater control over the selection of the individual or
individuals who will decide their dispute. In this world, disputes are inevitable and exist in different manners viz.,
family disputes, commercial disputes, national dispute, international disputes, industrial disputes etc. To resolve
all these disputes, Courts are one of the forum. But the Courts are already overburdened with mounting arrears
of cases. The best amicable method in ADR are Arbitration, Conciliation, Mediation and Negotiation.

“If two friends ask you to judge a dispute, don't accept, because you will lose one friend; on the other hand, if
two strangers come with the same request, accept because you will gain one friend”.[1]

But in India, Negotiation doesn’t have any statutory recognition i.e through way of legislation. Negotiation is self
counseling between the parties to resolve their dispute. The word "negotiation" is from the Latin expression,
"negotiatus", past participle of negotiare which means "to carry on business". "Negotium" means literally "not
leisure". Negotiation is a process that has no fixed rules but follows a predictable pattern. Negotiation is the
simplest means for redressal of disputes. In this mode the parties begin their talk without interference of any
third person. The aim of negotiation is the settlement of disputes by exchange of views and issues concerning
the parties. There is an ample opportunity for presentation of case in this mode of redressal. If there is
understanding and element of patience between the parties this mode of redressal of dispute is the simplest
and most economical. Negotiation is a dialogue intended to resolve disputes, to produce an agreement upon
courses of action, to bargain for individual or collective advantage, or to craft outcomes to satisfy various
interests. It is the primary method of alternative dispute resolution. It is very much like a sporting event of two
contesting wills, complete with advance game plans, strategic ploys, and bursts of brilliant open-field running.
Unlike most contents, though, a negotiation doesn’t have to end up with a winner and loser. At the end there
may not even be a score to tally. A well-conducted negotiation may allow both sides to win by expanding the
total pot, making the sum for both sides greater than either could possess alone. In the language of academics
this is called “synergy”. Basically the Advocate whenever participates by hearing the brief patiently and
negotiating with the client and required opponent parties, it reflects an impression in the mind of client or party.
In future, despite of the Advocate efforts if the case is in the favour of other party, there are very less chances
to Advocate the loser may not lose the Advocate. The reason is earlier the concept of ‘Negotiation’. To become
a successful negotiator, it needs a refining of several decades of practical experience and presentations. The
person who tastes the success always is a successful negotiator. In the advocacy approach, a skilled
negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favorable
outcomes possible for that party. In this process the negotiator attempts to determine the minimum outcome(s)
the other party is (or parties are) willing to accept, then adjusts their demands accordingly. A "successful"
negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the outcomes their
party desires, but without driving the other party to permanently break off negotiations, unless the best
alternative to a negotiated agreement (BATNA) is acceptable.

Traditional negotiating is sometimes called win-lose because of the assumption of a fixed "pie", that one
person's gain results in another person's loss. This is only true, however, if only a single issue needs to be
resolved, such as a price in a simple sales negotiation. This is nearly always the case, although often how they
go about getting what they want is so delicate it isn’t readily obvious. The negotiators were in different attitudes
as follows:

1. one may be meticulously polite.

2. one may be dull and to the point.
3. one may seem to have been born negotiators.
4. one may be have had to learn to be comfortable in the tug-and-pull of a conflict resolution.

The important capsule to be successful negotiator is to refuse to be intimidated. Even the odds are most
unlikely, few situations in life are rigidly fixed. Voicing a demand can’t insure success, but failure to make a
request guarantees it won’t be realized. The golden rule to keep in mind, the mantra upon which to silently
meditate as you enter into negotiation, is “Ask and you shall receive”.

Whenever we need the cooperation of another person to do something, however small, we have to engross in
a negotiation. Almost everything we do-from deciding with a friend where to go to lunch to buying a new car to
interviewing for a job- involves negotiating. The media portray negotiations as complicated, dramatic affairs
involving powerful politicians or mighty business leaders or high-priced lawyers. But often negotiations involve
ordinary folks who, if they felt less intimidated by the process, would find themselves considerably more
empowered in their lives.

Indeed, the ten new rules for global negotiations advocated by Hernandez and Graham nicely coincide with an
approach that comes naturally to the Japanese:

1. Accept only creative outcomes

2. Understand cultures, especially your own.
3. Don’t just adjust to cultural differences, exploit them.
4. Gather intelligence and reconnoiter the terrain.
5. Design the information flow and process of meetings.
6. Invest in personal relationships.
7. Persuade with questions. Seek information and understanding.
8. Make no concessions until the end.
9. Use techniques of creativity
10. Continue creativity after negotiations.

Negotiation is not a the supernatural practice. Nor is it sky rocket science requiring a Ph.D. Rather, it is a
fundamental human act, the process that enables the trading of goods and services, favours and obligations.
Negotiation is the protocol of exchange. If negotiation is going on all the time, most often it is practiced without
conscious attention. Instead of encouraging us to pursue results we desire, our culture regards the act of
bargaining itself as somehow unseemly. It depicts the process as one in which two people try to take
advantage of each other. To identify our objectives and seek to obtain them strategically is thought to be
manipulative. Negotiation to be successful needs strategy and don’t leave leave our negotiations to chance.

There are few social skills more useful than the ability to negotiate. To deny this is to deny one of the most
fundamental human activities. From the stone age to the 21st Century, history has moved forward through
exchanging, bartering, and buying and selling services and products.

During a negotiation, it would be wise not to take anything personally. If you leave personalities out of it, you
will be able to see opportunities more objectively. Either we're going to solve this by realistic negotiation or
there will be blood on the border. If you come to a negotiation table saying you have the final truth, that you
know nothing but the truth and that is final, you will get nothing. Let us move from the era of confrontation to the
era of negotiation. Negotiation in the classic diplomatic sense assumes parties more anxious to agree than to
disagree. The most difficult thing in any negotiation, almost, is making sure that you strip it of the emotion and
deal with the facts. And there was a considerable challenge to that here and understandably so. There's no
road map on how to raise a family: it's always an enormous negotiation. Negotiation in the classic diplomatic
sense assumes parties more anxious to agree than to disagree. Let us never negotiate out of fear. But, let us
never fear to negotiate. The most difficult thing in any negotiation, almost, is making sure that you strip it of the
emotion and deal with the facts. And there was a considerable challenge to that here and understandably so.
The single biggest danger in negotiation is not failure but to be successful without knowing why you are
successful. Flattery is the infantry of negotiation. Effective negotiators have a style that those whom they are
trying to influence, relate to and admire. Negotiations are a euphemism for submission if the shadow of power
is not cast across the bargaining table. The ‘Negotiation’ can be invoked at any time, even if the matter is
pending in the Court of Law. Similarly it can be terminated at any time. Finally, the mode of ADR through
Negotiation provides flexible procedure, strict procedure of law is not applicable. It is the option of the parties to
decide their fate and Advocate can also negotiate with other parties for amicable settlement. Here negotiation
is nothing but discussion to arrive to a settlement. This mode can be availed by parties themselves or on behalf
of parties the Advocate can use the weapon of negotiation also.
Negotiation and Different Types of Negotiators
5001 words (20 pages) Essay in Common Law

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Last modified: 02/02/18 Author: Law student

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“Disputes are inevitable element of human interaction and society needs to develop efficient
and innovative methods of dealing with them.” [1] To resolve disputes man has developed court
system. However there is a huge amount of cases pending in the courts. Lack of sufficient
machinery retards the process in resolving these disputes. An alternative to court, what we have
is something called Alternative Dispute Resolution (ADR). It has been described as “A halfway
house between the certainty of the adversarial system and flexibility of
negotiation”. [2] Summarizing this we can say that this is an informal process, alternate to
litigation, with the involvement of a neutral third party, given a choice of various processes.
Negotiation, Mediation, Arbitration and Conciliation are the different methods of ADR.
The discussion of this essay is “Competitive negotiators are more effective than cooperative
negotiators and the lies they tell are ethically permissible”. The Part I of this essay defines
negotiation and different types of Negotiators. Part II is comparison between competitive and
cooperative negotiation tactics Part III explains why competitive negotiation is often more
effective than cooperative negotiation Part IV discusses about Lying in Negotiation and whether
it is ethically permissible? And part V Conclusion.

Negotiation & different types of Negotiators

“Animals do not negotiate. They use violence or threat of violence, and various forms of
‘dominance’ and ‘display’ to get what they want, be it food, mates or territory. Theirs is a ‘red in
tooth and claw’ instinct and intentions.” [3] . Human beings negotiate, though not all of them
use this method. Negotiation has been defined by various people. “The process by which by
which we search for terms to obtain what we want from somebody who wants something from
us is Negotiation.” [4] ‘A joint decision made by two or more parties is referred to as
Negotiation. Reaching a consensus is the basic idea behind negotiating. Enabling groups of
agents to arrive at a natural agreement regarding a belief, plan or goal, is the key form of
interaction’. [5] “Negotiation is the process of two individuals or groups reaching joint
agreement about differing needs or ideas. Oliver (1996) described negotiation as “negotiators
jointly searching a multidimensional space and then agreeing to a single point in the
space.” [6] ‘According to Fisher and Ury, when you and the other party have interests that are
shared and some that are opposed, an agreement is reached through back and forth
communication is what negotiation stands for’. [7]

Before a suit is filed in the court, negotiation is done. If successful the suit may be prevented,
therefore it is a preventive ADR. By systematic dispute management, an emphasis is made on
avoiding conflict in the preventive process. In this way damage of relationship, loss of money
can be avoided or saved, as well as builds trust and confidence between the disputing parties.
Rightly enough, “the interaction between client and lawyer is a form of negotiation.” [8] In a
negotiation, “why does your opponent want is far more important than ‘what does the
opponent want’. This helps the negotiator to decide the methods of negotiation, which are
Integration, Obliging, Dominating, Avoiding and Compromising. Based on the above methods
there are different type of negotiators Competitive, Cooperative, Interest based and Avoider
type negotiator. Avoider type negotiators prefer to maintain status quo and try and hide behind
various rules, legal procedures and regulations. Their limited social skills are no good. “Some
people may prefer compromising, others are fiercely competitive. And others can be outright
adversarial when negotiating”. [9] Compared to other negotiation styles, Competitive and
Cooperative negotiations styles are more preferred by the negotiators.

Competitive Negotiators
These types are the aggressive sorts. They are also referred to an assertive, distributive and
positional. [10] The opponent is no real concern of theirs, their interest mainly being profit
maximizing for their client [11] . The attitude they carry clearly reads ‘my way or the highway’.
Their characteristics are as follows.

These negotiators do not give much importance to the relation with opposite party.

There is suspicion and hostility in attitude towards opposite party.

They use assertive and tough language.

There may be use of tools like coercion, threat or deception.

They will subtract certain items from the deal to get more profit.

They will listen less of opposite party, and they talk more.

There will be use of domination over the weaker party.

The competitive negotiator will close the negotiation by giving a final offer.

They would not prefer to bargain over it.

A competitive negotiator is of the belief that they has lost if the opponent gains what they want.
They display effective communication skills and ability of faster evaluation in the client’s interest,
even in tough conditions. Resisting the competitive negotiators, they feel they are not trying
hard enough for the opposite party to submit before their demands. “The long-term
consequences of competitive negotiation are unfavorable, yielding reduced enthusiasm and
commitment as well as damaged relationships.” [12] They believe they know best, they may also
make a display of authority, which they may not actually have. “A quasi-strength of competitive
negotiation is that the tactic often intimidates opponents and creates a situation where
competitive negotiators steamroll more cooperative negotiators into offering concessions and
more readily agreeing to the objectives of the competitive negotiator. A major weakness of
competitive negotiation, on the other hand, is that the other side will likely become competitive
as well leading to prolonged labor disputes” [13]

Unethical techniques used by competitive negotiators are, a) Lying – fact of matter and
proposed settlement offers are lied about by hiding the traps in it. b) Bluffing – This being
different from lying, facts are exaggerated to give a bigger picture of outcome. The opponent is
made to believe that the settlement will be highly advantageous to them, which in fact is not
true. In such a situation risky decisions and preparation for consequences is taken by the
negotiators. ‘In Garrett v. Mazda Motors of Am., 844 S.W.2d 178, 181 (1992), the salesperson
wrongly told buyer that car had been used by salesperson, when the car was stolen and used by
a car thief. It was considered as fraud and not mere puffery.’ [14] c) Force – Many types of force
may be used. Threat to the opposite party, coercion using some bait, dominance over the other
party to accept a settlement, unemotional and unsympathetic attitude or a tantrum thrown
during negotiation process are some example of force. d) Stealing – Data stealing and obtaining
information about client in a dishonest fashion during ground work are some forms of stealing.
e) Distracting – forcing and arguing about minor, petty issues, pulling away from the main
concern is a form of distraction. f) Blaming – attacking the opposite party by blame or other
techniques like interruption, insults, gestures or sarcasm again resulting in an attempt to distract
from the main issue.

To achieve maximum benefit for the client and also to increase their bargaining capacity the
competitive negotiator uses these techniques. They may not use these techniques as often
though. The tougher the situation the more competitive they become. “Competitive bargaining
has been criticized for its focus on specific positions rather than attempting to discern the true
interests of the parties” [15] They will stop at nothing to impress their clients and justify the use
of unethical technique saying, the opponent was going to submit or it is necessary in the case of
emergency or stating it to be harmless. Competitive negotiators are also called as ‘ distributive
negotiators’

Cooperative Negotiators
“Cooperative negotiations are particular type of negotiations where agents cooperate and
collaborate to achieve a common objective, in the best interest of system as whole. In
cooperative negotiation, each agent has a particular point of view of the problem and the
results are put together via negotiations trying to solve the conflicts posed by having only
partial view.” [16] In the interest of everyone, these negotiators put together an optimized
partial view and cooperate to reach a common object. “Cooperative negotiation is a kind of
negotiation that takes advantages of the cooperative nature of the agents to maximize social
utility” [17] To reach a settlement various offers or concessions would be considered through
compromises. Focus is made on reaching an agreement rather than a continuous dispute,
keeping in mind some gain to the opposite party as well. Expansion of resources between both
parties is welcome. [18] When a party does not have a strong bargaining position this method of
negotiation is adopted. “In this type of negotiation the tactics or techniques that negotiators use
to reach an agreement are adding issues, subtracting issues, substituting issues, and
logrolling.” [19] Characteristics of cooperative negotiators are as below.

The negotiators give importance to the relationship with opposite party.

They would communicate with honesty.

They would use soft language in communication.

The attitude towards opposite party is friendly and cooperative.

They will be ready to compromise and sacrifice.

They will add certain items to the deal, even if the incur a loss.
They may talk less and listen more.

To resolve a dispute the cooperative negotiator communicates the intention of cooperative

negotiation. Other ADR methods may also be proposed, the method of negotiation may not
necessarily be communicated. Problem and plan of negotiation may be sent to the opponent
negotiator. They show concern about the opposite party. A cooling off period is proposed in
case of no positive outcome. A cooling off period allows both parties to consider the
happenings and the proposed solutions. Time for evaluation of gains and loses is proposed in
the meeting. There after the negotiator can start with fresh new ideas and solutions. In order to
reach a final settlement, during the period the negotiator may give a concession or compromise
on certain terms. Benefit of this type of negotiation is they can tackle tough environments and
smoothing out the flow of negotiation. Cooperative negotiators are also called as ‘integrative
negotiators’.

II. Comparison between Competitive and Cooperative

negotiation tactics
In recent past, researchers have made two attempts to sort out methodically a wide range of
bargaining tactics, providing a more speculative cover to the nuts-and-bolts, tactical perspective
of the negotiating process, classified as either “cooperative” or “competitive”. For example, a
competitive negotiator makes ridiculous, extreme opening demands which they actually hopes
to obtain, whereas a cooperative negotiator makes a modest and more realistic request.
Differentiation of the two helps the negotiator to identify various options whenever they present
themselves. Further emphasis on this example shows that when either type is called to make an
opening demand, they either result in an aggressive or friendly option. [20]

Before making a comparison between cooperative and competitive negotiation style, let’s take a
look at some mathematical formulae to compare the two. Business as well as negotiation, both
has certain profit and loss. Lets make that calculation. The simple formula to calculate profit is
selling price minus cost price is equal to profit (SP-CP=P) and formula for loss is cost price
minus selling price is equal to loss (i.e. CP – SP = L). In a negotiation both parties are expecting
to gain something as a result. For this they have estimated certain figures as compared to the
market value. For example, a person decides to buy a digital camera which costs approximately
₤ 100. Now he looks for where he can get it for less. A sales person gets the same camera for ₤
75 and sells it for ₤100, profit being ₤ 25. The buyer approaches the salesperson and negotiates
the price. The salesperson can choose to sell for less or not bargain. In the sell for less there is
no loss incurred except a decrease in profit. The buyer on the other hand is in profit because he
has bought at less than market price. If the salesperson had not sold for less and offered
freebies, like a memory card or rechargeable batteries with a charger, he may have earned his
profit but giving away goodies has incurred some amount of loss. The buyer may not have
profited in this case but did get the free goodies which he may have had to otherwise purchase.
Here profit being kind not cash.
This is the kind of profit we look for when negotiating. The two can be called negotiation profit
and negotiation loss respectively. Considering the same situation in yet another way the loss
that the buyer incurred may not actually be a loss to him, or the profit the seller got may not be
a profit to him. The free goods may have been from old stock for other cameras. The buyer on
the other hand may already have the extras before buying the camera, hence not a real profit.
Any method that provides more profit as compared to other negotiation process may be
considered more effective.

Now taking a look at the characteristics of negotiators, cooperatives will add and competitive
will deduct. However addition may result in failure if the opponent does not agree. The
condition of the market at that time also determines the negotiation profit. For example, if a
computer is available everywhere at a same price and is also in high demand, the salesperson
may not decrease the profit margin. Thus the buyer does not gain any profit irrespective of
where he buys from. There the amount of negotiation profit is less. In a second scenario, the
computer is not available because it is outdated and has no demand. The seller has only a few
pieces and is in a hurry to clear the stock. Here the seller is willing to sell for less as few may
actually buy. The buyer may be willing to buy for more, because the computer is not easily
available. Therefore the amount of negotiation profit in this transaction is more because any
amount above the purchase price of the salesperson is a profit to him, and any amount less than
the market prices is profit for the buyer. Hence they both are at profit. Therefore when the
condition of the market is in favour of both parties and they are left with no choice, a
competitive negotiator stands to gain and when the condition of market favors one party it is
always good to have cooperative negotiation.

Attitude of competitive negotiator is hostile towards the opponent whereas cooperative

negotiator is helpful. Competitive negotiators are only interested in themselves and in a
settlement that works only in their favour. On the other hand the cooperative negotiators are
outcome oriented and may even give away some demands if it results in a settlement. The
competitive negotiators make one sided demands without offering anything in return, they only
want to get but do not want to give. The cooperative negotiator may make a demand with
something in return for it. They also submit to the opposite demands with considering their
own. This form may be harmful if the opponent has adopted the competitive approach.
Cooperative negotiator gives most away in order to reach a settlement.

III. Why Competitive Negotiation is more effective than

Cooperative Negotiation.
Cooperative Negotiation seems nice, but may not be as effective. There are certain reasons for
that. Since they give away, they subtract items from the deal resulting in negotiation loss instead
of negotiation profit. They offer their best deal, by adding items to an already existing list.
However, this may not be approved by the opposite party. The opposite party may consider
other options before accepting the deal. For example, someone selling a house may also
provide furnishing free, but the buyer may already have it, or the stuff may be available for less
else where. Therefore negotiation may not always give the expected result. In such a situation
competitive negotiator will demand a discount and refuse the additional. They may want to buy
the furnishing later or from elsewhere. Thus adding more items may not always have favourable
results. However, demanding a discount may result in an actual cash discount.

Successful negotiation depends on good ground work such as gathering information about the
opposite party before negotiation. The upper and lower limit of the terms of negotiation, need
to be discussed before negotiation starts. This help to arrive at a decision. The cooperative
negotiator may assume certain figures or may have a list of things to offer or might even have
set a lower limit of the offer they plan to give. Similarly they may get less than the anticipated
negotiation profit. The situation will be different in a competitive negotiators case, they accept
only a deal favourable to them. For example, 10 employees resign due to no increment on the
same day. The management negotiates and offers promotion, free transport and health
insurance but no increment. Jack is a cooperative negotiator and is only interested in a raise of
25% and nothing else. Others take the offer, but company wants to retain them all and accept
an increase for Jack. Competitive Negotiators will never settle for less and thus obtain the
desired outcome.

Competitive negotiators lie to get a favourable outcome. They modify the opponents perception
and convince them of how unfruitful the outcome would be if the deal goes as per the other
parties terms. For example, let’s say Martin has a land to sell. He doe not tell the prospect that
part of the land may be acquired shortly for road widening. Instead he points out the benefits of
road touch land, making the prospect feel like he is getting a good bargain. However, a
cooperative negotiator would not hide that fact.

There is always some extra amount which is to be distributed in the form of negotiation profit
during negotiation. Whoever can make best use of their skills gains maximum. For example, in
situation of divorce, there is a property, house, car and jewelry that needs to be distributed
amongst the spouses. A competitive negotiator will use coercion, assertive and tough language
and will not listen to the other. They will try and get maximum gain for their client, whereas the
cooperative negotiator will give rather than take. Therefore this situation only benefits a
competitive negotiator and not a cooperative one.

Competitive negotiators look for weakness in the opposite party and use it in their best interest.
For example, John needs to make a shift from one place to another. He decides to sell his
beautiful rugs and chandelier because the cost of transporting them is almost the same as
compare to buying a new one. Wilma comes and would like to buy, John demands more than
she expects. She doesn’t have that much money. Through conversation she learns that he needs
to leave the place in 2 days hence in hurry to sell the goods. She makes a final offer and puts the
cash in front of him, assuring she would pick them up in an hour. John has to accept because of
the hurry he is into and dispose off the goods. In this case a cooperative negotiator may have
given John the price he requested.
‘According to Russell Korobkint, cooperative negotiators failing to deal with third parties with
regard to the additional issues and the fact, Lawyers can only gain value if the deals terms are
personally skilled at using integrative bargaining tactics is often much less than what is assumed
in the typical negotiation classroom, where the acquired wisdom of industry-specific custom
that informs the baseline for transactions in the real world is rarely assumed. He also proves the
point the “more integrative potential of a negotiation, the more potential value of distributive
bargaining through an example of sale of non-liquid assets and an equal division for a divorcing
couple. These three reasons suggest that integrative tactics might be less valuable, compared to
distributive tactics and demonstrates an important limitation on the potential of integrative
tactics to create value for negotiators.’ [21]

Therefore in situations where cooperative negotiation seems beneficial, it is actually a

competitive negotiator who takes bigger share of profit, as compared to cooperative negotiator.
Since competitive negotiators gain more benefit for their clients they are more efficient and
effective than cooperative negotiators.

IV. Lying in Negotiation – Whether ethically permissible?

A. Ethics in Negotiation
Ethics are broadly applied social standards for what is right or wrong in a particular situation or
process. They differ from morals due to individual and personal belief. Ethics come from
philosophies which purport to define the nature of the world we live in or lay down rules for
living together. [22] A negotiator may use a different approach, but however during a negation
they may use various strategies that may work including unethical tactics. In the negotiating
process the law does not permit or encourage unethical techniques or practices. “In Ernst Young
v. Butte Mining plc [23] , misleading behaviour in negotiation led the court to set aside a
purported agreement to serve a notice of discontinuance.” [24] ‘In the case of Spaulding v.
Zimmerman [25] , Spaulding a minor was injured in an accident. There was a medical test
conducted and doctors claimed his wounds to be healed completely. The defence lawyers had
him examined by their doctors to find any substantive material for defence. They found an
aneurysm, which they did not disclose. After grant of settlement when Spaulding discovered this
problem he sued to set aside the settlement. The court granted his prayer and vacated the
order.’ [26] ‘In Stare v. Tate [27] , there was a divorce negotiation and involved equal distribution
of property. Due to miscalculation of Stare’s she received less share, Tate’s attorneys were aware
of this miscalculation. The court ordered resettlement and gave her remaining
claim.’ [28] However ‘in case of Brown v. County of Genesee [29] , the diabetic employee could
have got higher salary than the one she got because county lawyers did not disclose certain
things to her. Court held that she or her lawyer did not check the public records and opposite
party lawyers were not obliged to inform her about any such records. The mistake was from
both sides.’ [30]

B. Lying in Negotiation
Telling the truth is one of the major issue in negotiating. Negotiators avoid disclosing the
complete truth. “Effectiveness in negotiations is central to the business of lawyering and a
willingness to lie is central to one’s effectiveness in negotiations.” [31] Lawyers may use various
types of lies to negotiate. False claims are made on the value and history of movable and
immovable property. Rates may be inflated or vice versa. They make false promises and may lie
about the authority and power given to them by the client. They may conceal their interest in
the outcome of the deal. They may also hold back facts regarding third party reservation or
claims in property. False or incorrect claims may also be made; they may not also disclose
alternative agreements which may prove more beneficial. “These lies operate to misrepresent
our willingness to settle, the price above which we will not buy (or below which we will not sell),
our client’s insistence on custody, the presence or activities of competing bidders, or our
availability and readiness for trial.” [32] ‘In Virzi v. Grand Trunk Warehouse & Cold Storage
Co. [33] , the court set aside an agreement because lawyers did not disclose death of the client
before the settlement.’ [34] Similarly in case of ‘Kentucky Bar Ass’n. v. Geisler [35] , the attorney
was publicly reprimanded for failing to inform the defense attorney about the death of plaintiff
during the negotiation.’ [36]

C. Is lying ethically permissible.

Honesty is the best policy is what many lawyers assert and that is most profitable in the long
run. They maintain that lying in negotiation is ineffective. Others seem to say that lying is not a
serious problem in negotiation, because those lies are ethically permissible. [37] “The American
Model Rules of Professional conduct states that a lawyer shall not knowingly make a false
statement of material or law to third person and rule 4.1 a paragon of charity says “A Lawyer
may not lie”” [38] . “While Rule 4.1 prohibits the knowing misrepresentation of material fact or
law, Comment 2 expressly recognizes that statements regarding client values and settlement
intentions made during bargaining interactions do not concern material fact. It is thus ethical for
negotiating attorneys to deliberately misrepresent such matters. They may do this overtly,
partially, or through the nondisclosure of information” [39]

Lawyers justify the usage of unethical tactics. The imposition of fairness standards would be
opposed by most attorneys for negotiators. “Client first” is a maxim that is deeply ingrained.
Absolute confidentiality is entitled to a client, unless the attorney believes the client intend to
commit a criminal act in future. [40] Whatever they do is for the benefit of client and to protect
the benefit of client they speak lies. According to the law any communication between the client
and attorney is subject to attorney-client-privilege is another justification to the lies they speak.
The attorney is not liable or forced to disclose certain details by any law. He/she may with hold
it. When disclosing certain facts during negotiation the same condition is applicable. However it
was held in ‘Mann v. Adams Realty Co., Inc. [41] , that the duty to disclose is particularly
compelling when one party has superior knowledge and the unknowing party has been induced
to take action it otherwise might not have taken.’ [42]
Therefore, though lying is unethical it is permissible in certain conditions. Lawyers use those
conditions to gain benefit for the client. The non disclosure law supports the lawyer in keeping
certain secrets about his clients.

V. Conclusion
Competitive Negotiation is complex and deserves its own nuanced analysis. Supporters of
cooperative negotiation caricature the competitive negotiation tactics as limited to making
unreasonable demands and further then refusing to reach an agreement.

The Natural History of Negotiation and

Mediation: The Evolution of Negotiative
Behaviors, Rituals, and Approaches
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by Robert Benjamin
June 2012
Overview

Since the end of World War II, in which the specter of nuclear war impelled
the development of more “scientific” methods of conflict management,
negotiation and mediation were re-invented into a more “rational” and
acceptable form. In the process, however, the history of negotiation, a
process that has always been and continues to be suspect, began to be
further minimized or disregarded as irrelevant. The awareness of the
evolutionary development and natural history of negotiative behaviors,
however, offers an important and more complete perspective that allows
practice style orthodoxies and heuristic biases that undermine practice effectiveness and
competency to be exposed. Neglecting this history limits the future development of new
negotiative approaches which are critical for the management of conflict in a world where the
complexity of human decision making and collaboration are being ever more quickly revealed by
advances in neuroscience and cognitive psychology.

Every human being negotiates at some point in his or her life, on some matter or another, some
more effectively than others. We have survived and thrived as a species largely because of this
ability. And, of all the modes of conflict management, negotiative processes are the most
flexible, efficient, economical and eminently sensible in the human repertoire for managing
issues, differences, and controversies. In early human history, those disputes mostly occurred
within and between individuals, families, tribes, and communities. Yet, despite the abject
necessity of negotiation for human survival, the activity remains suspect in the minds of most
people even---or especially---in more recent centuries, as societies have become more socially,
politically, technologically, and economically complex and the need more profound than ever.

Negotiative behaviors and processes is intended to describe the constellation of acts and
communications that extend beyond any particular negotiation and encompasses every manner
of expression or action, whether formal or informal, that serves to manage, minimize, or settle
issues or differences that arise between people. The most common of these processes are
direct negotiation among and between the primary parties involved in a controversy, or
mediation---a hybrid form--- when the negotiation process is aided by a third party. Many people
and practitioners view negotiation and mediation as distinct and separate processes, but the
strategies, techniques and skills are essentially the same for both; only the format is different.
Impromptu informal negotiations or mediations can take place tacitly or through gestures of
agreement or disapproval, or by formally arranged meetings, face to face or asynchronously. In
every family or workplace, friends, family members, co-workers, colleagues, or managers,
alternatively negotiate, serve as de facto mediators, or are the participants in a mediation. (Lax,
David A., and Sebenius, James K., The Manager as Negotiator, 1986) More formally, in larger
organizations or agencies, there are appointed ombudspersons whose role is to use mediative
techniques to manage internal organizational stresses and disputes. However, unlike a judge,
arbitrator, special master, fact finder, or other third party who has the authority to impose a
result or determination in a controversy, either by law or contract, negotiators and mediators
have no such power or authority, although sometimes arbital, negotiative and mediative
processes are joined or overlap. (Brown, Henry, and Marriott, Arthur, ADR Principles and
Practice, 3rd ed., 2011) Negotiation and mediation processes are uniquely voluntary and the
authority of the practitioner requires the assent of the other party or parties. Negotiative
processes are used in every substantive context where disputes arise, including: health care
and educational systems, business transactions, politics, public policy formulation and
legislation, legal disputes, geopolitical affairs between nations, environmental and sustainable
development issues, and in scientific and medical research decisions. When rules, laws,
regulations, and formalized policies cannot or do not effectively serve to settle controversies or
issues that require greater nuance or flexibility, negotiation and mediation are the primary
means by which people reach some level of accommodation to live and work together.

Many conflate communication with negotiation, believing that the display of empathy and
understanding are sufficient to resolve issues or conflicts. While the capacity for empathy and
ability to communicate are essential components, they are not a substitute for effective
negotiation. Negotiative behaviors are the give and take that leads to workable arrangements
between people, often times in circumstances where empathy and communication are only
barely present. Negotiative behavior is the muscle and bone that converts the visceral human
instinct to survive and the recognition that collaboration and cooperation are required, into
reality, regardless of the relationship of those involved.

The Evolutionary Process

Human negotiative behaviors, rituals, approaches, have evolved in form over the centuries,
adapting to shifts and changes in the surrounding social, biological, political, cultural, and
economic environment. Those behaviors, not unlike every other manifestation of human biology
physiology, psychology, and language, are subject to the basic principles of Evolutionary
Theory. Arguably, the human brain itself, which has increased in size over the centuries, is due
in part to an increased use of negotiative processes. Some physical anthropologists conjecture
that the change is not so much a function of the need for a greater reasoning capacity, but
rather to manage and deal with the increased complexity of social and political affairs and the
need to process and deal with those interactions. Specifically, as people have come to live more
closely together in larger and more dense cities, they have a greater need to be able to detect
and protect themselves from deceptions and potential threats from others, and in turn, to be
similarly strategic in their own dealings. (Dunbar, Helen, Grooming, Gossip, and the Evolution of
Language, 1996) Language and communication skills have similarly evolved in response to the
changing nature and demands of social relationships, political systems and governing
structures. (Pinker, S., The Language Instinct, 1994, and The Better Angels of Our Nature: Why
Violence Has Declined, 2011) As to whether such evolutionary adaptations can be labeled as
positive or negative and signs of human progress, or not, is another issue.

Negotiation is Not a Uniquely Human Behavior

The natural history of negotiative behaviors and rituals does not begin with the human species.
Sometimes human hubris can block or marginalize our awareness that all animal species exhibit
rudimentary forms of negotiation behavior, many of which are apparent in the human behavioral
repertory. While humans clearly have a higher level of consciousness, the ability to think
conceptually, and advanced language skill, at core, not unlike all other species, we have an
innate biological instinct to survive. To that end, we have necessarily developed cooperative
protocols, rituals and behavioral patterns and display many of the same characteristic
expressions, cues, signals, and behaviors, as do other species, to manage both internal group
tensions and conflicts and to organize protective defenses against external threats. (Darwin,
Charles, The Expression of the Emotions in Man and Animal, 1889/1998) Animal ethnologists
have noted many striking resemblances between animals and humans available for observation
at any local dog park or on the street. A dog’s low growl is, for example, not unlike a human’s
issuance of an ultimatum, saying in effect, “this far and no further--or else…” (Horowitz,
Alexandra, Inside of a Dog, 2009) Similarly, most every species has protocols that allow
defeated or weaker group members to retreat and survive. The Social Darwinist notion of the
“survival of the fittest,” popularized by writers such as Ayn Rand, dubiously popularized an
inaccurate understanding of Evolutionary Theory. While humans, and other species, can be
brutal towards perceived enemies, but they have also frequently exhibited empathy for and
tolerance for those less able to contribute. Those dominant in a culture have regularly allowed
“lessors” some room to negotiate their existence. If humans are innately aggressive, they also
have a cooperative instinct to moderate that aggression; war invariably begets the negotiation of
a re-stabilizing “peace.” (Aureli, F., and De Waal, F.B.M., Natural Conflict Resolution, 2000;
Wilson, E.O., On Human Nature, 1978: Wright, Robert, The Moral Animal, 1994)

For humans, an awareness of the natural history of negotiative behavior, rituals and approaches
is important for three reasons. First, to become aware of the continuing relevance and
evolutionary purpose of many traditional negotiation tactics and approaches that are otherwise
prone to being dismissed as primitive and anachronistic. Second, studying this natural history
offers an important alternative perspective on the multitude of styles and models of negotiation
that have cropped up so as to hold in check the resulting orthodoxy of practice which can impair
practice competency and effectiveness. Third, the history provides clues to understanding and
neutralizing the still persistent and deeply ingrained ambivalence and resistance to negotiation.

Despite the Necessity, Most People Do Not Like to Negotiate: Sources of Ambivalence
and Resistance

Despite the necessity to negotiate, and that it is a eminently sensible approach to settling
differences, many people have an ingrained ambivalence toward and resistance to negotiation
or mediation. While many profess to like the idea of cooperating in theory, they find the actual
practice of compromise to be far more problematic. This ambivalence has shadowed the
negotiative processes throughout history. The suspicion even extends to the motives of those
who would recommend or suggest that they engage in negotiation. While many presume that
anyone, given the option to settle a dispute by negotiation or mediation, would rationally choose
to do so, that logic does not hold consistently. In fact, despite the unquestioned need for such
services, few people negotiate or mediate easily or willingly. Many people, regardless of culture,
continue to be gripped by a centuries old, deeply ingrained resistance to such negotiative
processes, which frequently threatens, and sometimes trumps, reason, and can even
overwhelm the instinct to collaborate. Conflict management practitioners cannot afford to
minimize or dismiss the emotional depth of peoples’ historical ambivalence and resistance to
negotiative processes in their understanding, marketing and practice approach.

There are Four Primary Sources of Resistance to Negotiation: Neurobiological, Cultural,

Psychological, and Moral

Biologically, the human brain is not the neatly ordered computer like organ of popular
imagination; in fact, that functioning is often a messy affair. When threatened by others or a
difficult situation, negotiation is seldom people’s first choice and not considered until all other
modes of conflict management have been exhausted, namely the “fight-flight” syndrome.
Neuroscientists have confirmed there is a neurochemical release in the brain, triggered by a
perceived threatening circumstance, to either withdraw and avoid the situation, or fight back.
There is no neurochemical trigger to negotiate. Negotiation is typically a secondary response,
which requires an effortful, conscious and intentional decision to engage the threat alternatively.

Psychologically, a person in conflict must overcome their initial impulse, or gut reaction, against
dealing face-to-face with a person or persons with whom they are at odds. Depending on the
extremity of the situation, those other people can very quickly become identified as not merely
having different views, but as adversaries or enemies. While training and experience can help
minimize such inclinations, few can avoid the feelings entirely. The effort necessary to
overcome such initial reactions and consider a negotiated compromise often takes more time
and effort than most people realize. Not even experienced negotiators and mediators are
immune to this piece of “predictable human irrationality.” Especially in a culture dedicated to the
belief in rationality, most people enter a dispute with a sense of being right in their view of the
matter, justified in their position, and unwilling, if not loathe, to compromise. To do so, is akin to
“giving in,” or worse, compromising the truth and “selling out” their principles. For many people,
as cognitive psychologists have demonstrated, their self-assuredness is only matched by their
over confidence. An example of this form of predictable irrationality is commonly apparent
among both parties and lawyers in many legal controversies where each side will unabashedly
predict victory and vindication. In accord with the prevailing myth of justice, each side will claim
that any ostensibly independent and fair-minded third party, be it a judge or a jury, will render a
determination in their favor. They often persist in making such predictions despite considerable
evidence that demonstrates such confidence in the outcome is unpredictable and
unjustified. The balance is precarious: from an evolutionary perspective, human irrational
commitment, determination, and dedication to a belief has proven helpful to bring about the
acceptance of many ideas, the propriety and logic of which were initially in question; at the
same time, if commitment that lapses into stubborness and intransigence can lead to faulty
judgments and poor decisions. (Kahneman, D. Thinking Fast and Slow, 2012)

In most controversies or conflicts the people and professionals involved--- including the
negotiators and mediators--will be faced with the challenge of managing their human,
“predictably irrational” propensity to make “fundamental attribution errors” about those with
whom they are engaged. It is hard to avoid casting those with whom one disagrees, whether in
politics, disputes, or even intellectual discussions, as either naïve, illogical, mentally slow,
unreasonable, or sometimes even evil. (Ross, L, and Ward, A., Naïve Realism, 1998) Being
aware of the propensity does not appear to be a prophylactic and certainly does not cure it.
Finally, many people are psychologically reluctant to take the responsibility for their own
decisions that negotiation or mediation require, and not uncommonly defer to experts. This is
especially so in a complex technological society where people are often confused and
overwhelmed, often unfamiliar and uneducated in even the basics of negotiation, and stressed
by the conflict. All of this is exacerbated by the common pre-disposition of many to view
negotiation as a risky venture and to hesitate to participate for fear they will be taken advantage
of and played for a fools by a devious adversary. While almost every news broadcast includes
reference to some matter being negotiated, most people have not been actively involved nor
have much personal experience in negotiation. The nature of negotiation practice is diffuse and
often undifferentiated from one’s philosophy of life. Although a critically important skill set,
negotiation is not taught in schools and there are few courses for the general public, or for that
matter, for professionals, and the “self help” literature is sketchy, and in any event, an
inadequate substitute for thoughtful preparation. Most people have learned to negotiate, “by the
seat of their pants” ---a hit or miss proposition at best. As a result, especially in a techno-rational
culture, where professional experts are thought to be imbued with special knowledge and
authority, the default choice for many people in conflict, be it personal or business, is not just to
consult with them, but to “be safe,” to follow their “advice”--- or more accurately, their direction.

Culturally, especially in dominant cultures with a strong militaristic tradition, the willingness to
negotiate is considered a sign of weakness. John Wayne, for example, not just a movie star, but
an American cultural icon, would never negotiate. He, and the progeny of action stars that have
followed him, embody the quintessential action figure many people -- not just men -- want to
emulate. Action heros force or compel change; they have their own internal sense of justice
and waste no time negotiating. Especially In the American Western film genre, the “bad guys”
are the bureaucrats who want to negotiate, make deals and compromise. (Benjamin, R.D.,
“Reel Negotiation: The Good, The Bad, and The Ugly- Reflections of Negotiation and Mediation
in Film,” Mediate.com, 2006) Most action dramas, be they television, film or video game, have a
script that perpetuates the cultural Myths of Truth and Justice. This provides a steady “fast food”
diet that reinforces the belief that for every problem there is a simple, correct, and right answer,
which is discoverable, leaving little room for negotiation.

Negotiation is considered by many to be not just a sign of weakness, but an immoral and sinful
act. Even if none of the people involved in a dispute are religious and the issue seems relatively
minor---a dog barking case or property dispute---the matter still has a moral dimension. The
description of a negotiated agreement as “doing a deal with the devil,” The metaphor associates
and structures negotiation, at least partially, as an evil act. (Lakoff, George and Johnson, Mark,
Metaphors We Live By, 1980) Elaine Pagels observes in her book, Adam, Eve, and the Serpent
(1989), that in Christian theology Satan is the archetype of evil and his primary modus operandi
is to tempt, deceive, persuade, and negotiate for human souls. Nowhere has the influence of
this theology permeated more pervasively than in human negotiative behavior. (Benjamin, R.D.,
“Negotiation and Evil: Religious and Moral Resistance to Settlement,”1998)

With this framing of negotiation, it is easy to understand how many would assume the best
defense against Satan’s seductions is to maintain a rigid and uncompromising position and
refuse to negotiate on any matter where principle is involved--- and there is a principle lurking in
almost every dispute. The risk of crossing the line in a compromise, even if a sensible one,
raises the specter of selling-out. While making a deal is for some indicative of pragmatic
flexibility, for others, it is a sign of relativistic thinking, moral laxity and questionable character.
The association of negotiation and sin is not infrequent or inconsequential. A father in a divorce
case who has offered to pay more child support in return for more time with the children is often
subject to being accused of immorally treating the children as property to be bought and sold.
Likewise, in business matters, many refer to legal actions as intimidation, coercion or even
“blackmail, ” which an especially common response to a party’s allegation of “sexual
harassment” in a workplace matter.

The suspicion of negotiative processes often extends to questioning the character of anyone
who would engage in, or suggest, the negotiation of a controversy. Neville Chamberlain, the
British Prime Minister, was accused of appeasement because of his negotiation of the Munich
Accord with German Chancellor Adolf Hitler in 1938, seeking to short circuit World War II..
Similarly, President John F. Kennedy’s character was questioned for his pursuit of a negotiation
with then Soviet Premier Nikita Kruschev, instead of a first strike military action in the 1962
Cuban Missile Crisis. (Kennedy, Robert F., Thirteen Days, 1969; film Thirteen Days, 2000)

In the same fashion, while mediators and negotiators view their day-to-day work as a well-
intended and noble effort to resolve conflict, they are frequently viewed far less favorably, not
only by other professionals, but by the parties with whom they are working. For those unfamiliar
or unsupportive of the negotiation or mediation, especially in complex matters, the often messy
process that frequently requires hard to explain trade-offs to reach a settlement is particularly
susceptible to second guessing and those who have served as handmaidens and helped
facilitate the resulting deal are subject to severe criticism. In addition, regardless of how well
informed a party might be prior to agreement, by nature, he or she is prone to suffer “buyer’s
remorse.” They question their judgment in settling, and sometimes displace their anger and
blame on the mediator, lawyer, or others who aided the negotiation process. Some go so far as
to revise and reconstruct their memory of the agreement as one in which they were “coerced” to
settle. Neuroscientists have confirmed how facile the human memory tends to be;
reinterpretations of history are more the rule than the exception.

Lawyers, politicians, and diplomats have drawn a disproportionate share of scorn, not because
they are less principled or ethical than doctors, clergy, counselors, or other professionals, but
because their work requires more direct involvement in negotiating and making deals. As such,
they have provided a good amount of fodder over the centuries for the ridicule of caricaturists
like Daumier, the satire of Shakespeare and Voltaire, and punch lines for humorists and
comedians from Aristophanes, Mark Twain, and Will Rogers to John Stewart and Stephen
Colbert.

The ambivalence and suspicion of negotiative processes has been carried down through the
centuries. Richard Dawkins, a noted evolutionary biologist, has suggested that negotiative
behaviors, along with other cultural rituals and traditions and the disposition to practice them,
are possibly transmitted from generation to generation by “memes” in a process analogous to
the transmission of biological traits through genes. (Dawkins, R., The Selfish Gene, 1976)
Clearly, some ethnic and cultural groups tend to be more disposed to negotiate than others.

The deeply ingrained historic resistance and ambivalence towards negotiative processes has
contributed to the slow pace of acceptance and study of negotiative behavior to the present day.
While altered somewhat by the considerable efforts in recent years to rehabilitate and remake
negotiation and mediation as rational and sensible modes of settling disputes, that effort has not
cured or even substantially dented the ambivalence. This is in some measure because the
sources of resistance, or for that matter, basic negotiation skills, are still rarely taught or
systematically studied. This failure to appreciate the depth and extent of depth of the resistance
limits not only practice effectiveness, but the ability to successfully market and gain a wider
public acceptance of negotiation and mediation services.
“Style Wars” and the Risks of Practice Orthodoxy

The awareness of the natural history of negotiative processes also offers a perspective with
regard to the multiplicity of approaches, styles, strategies and techniques that are now
practiced. Those differences, not surprisingly, have incited rivalries between practitioners,
professional organizations, teachers and theorists and have encouraged practice orthodoxy.
These “style wars” are largely traceable to the advent of the modern rationalist approach to
negotiation, especially over the course of the last 30 years.

Roger Fisher and William Ury, two Harvard Professors, wrote Getting to Yes in 1981. As a
reasonably short, accessible, coherent and internationally popular primer on what the authors
term “principled” negotiation, it has become a bible of sorts. The underlying premise is that
people are rational actors and that through discussion focused on their common and respective
interests, they can cooperatively arrive at mutually satisfactory agreements. Those basic tenets
have come to undergird most of present day professional training, teaching and academic
curricula in conflict resolution.

Fisher and Ury, began the process of re-inventing negotiation by dressing the process in the
familiar intellectual frame of reason and rational decision making theory and civil discourse. In
doing so, negotiation and mediation practitioners could trade in their historic reputation for being
deceptive and manipulative agents and present themselves instead as “neutral” and impartial
problem solvers.

This modern re-shaping carries with it the active suggestion that reasoned negotiative modes
are not only different, and a break from a past questionable practices, but also universal in
application. Rationality, arguably, eclipses the boundaries of time, culture and circumstance, so
that neither history nor culture are especially relevant to whether this approach to negotiation is
applicable to solve a controversy. This modern rationalist form purports to be a “win-win”
approach of expanding options and creative solutions. Fisher and Ury, therefore, make little
mention of the history of negotiation, except to cast it as a jumble of outmoded tactics and
unnecessary game playing. Those more primitive forms of the “hardball” power negotiation
style, relied on tactics such as positional bargaining, the use of ultimatums, and deceptive or
manipulative ploys, which Fisher and Ury considered misguided, dysfunctional, and sometimes
unprincipled. As a win-lose contest between participants with limited options in a “zero-sum”
game, harsh and competitive schemes are tacitly or directly encouraged. The rivalry between
the new-form rationalist approach and the realpolitik approach of power negotiation remains
fierce. Modern practitioners have acquired a strong antipathy toward what they view as
competitive and unprincipled tactics, and in return, old style practitioners openly question their
naiveté about the nature of conflicts in the real world. In evolutionary terms, however, the
continued presence of both approaches suggests each may well have a current value,
relevance and purpose.

There is an ongoing tension between the more traditional “hardball” power style of negotiation---
and in mediation, a corresponding directive and evaluative style of practice---- and the more
deliberative and facilitative, rationalist approach of recent years. In addition, many other offshoot
styles of the rationalist approach have proliferated in recent years due to the attention mediation
services have garnered from the formal legal system. In 1979, Harvard Professor, Robert
Mnookin, described mediation as a form of “private ordering” between parties in an informal
process that, while in the “shadow of the law,” effectively outside of that system. (Mnookin,
Robert, “Bargaining in the Shadow of the Law,” Yale Law Journal, 1979) Now, 30 years later, to
an extent never before seen in history, through legislation and court rule, that process has been
insinuated and institutionalized in the legal landscape. The expansion of available markets for
mediation services appears to have spurred the emergence of many different “brands” of
mediation.

Each practice style claims to meet special needs and purposes that the espousing practitioners
believe it unique and set it apart from the others. The current style forms that have emerged in
recent years cluster around three poles of influence: the substantive dispute context of the
matter, the practitioners’ professions of origin, or an ideological belief system.

The substantive dispute contexts that influence style can be as varied as the subject of the
conflict. Divorce, family, juvenile, victim-offender, elder care, community, workplace,
employment discrimination, construction, personal injury, mortgage foreclosure, damage claims,
health care (‘medical malpractice”), foreclosure, special education, disability legislation
compliance, environmental and sustainable development, and public policy matters, are only
some of an ever increasing list of dispute contexts for which specialized styles have begun to be
generated.

The practitioners’ professions or disciplines of origin often set habits of thinking and approach
that influence their negotiation and mediation style include among others, law, counseling,
business, religion, community development, urban planning, environmental management, or
philosophy.

For many, the practice of conflict mediation and negotiation is a form of peacemaking.
Practitioners are drawn out of a commitment to an ideological belief system that views conflict
as an opportunity for relationship transformation, the pursuit of peace and social justice, or even
the ultimate alteration of human nature fostered by a dedication of a deliberative process.

None of the style forms are wrong or misguided, and many are serviceable. However, to the
extent a style has been adopted unwittingly, or out of habit, rather than by conscious
choice, can often limit a practitioners’ effectiveness. Many negotiators and mediators have
tended to take on a particular style because it appeared familiar and comfortable, rather than
carefully scrutinizing their assumptions about the nature of conflict, how people make decisions,
and the available strategies and techniques most effective in the presenting circumstances.
Style is most heavily influenced by, among many others, a practitioner’s own personal
experience, cultural and ethnic background, religion, professional training, and conventional
wisdom and mythology. Specifically, the approach and style of negotiation and mediation
practice in Western culture tends to assume people make decisions in a cost effective,
reasonable and mature way. Every practitioner has many heuristic biases, or rules of thumb,
some conscious and others not, that enter into their choice of style. Some of those biases are
useful in certain circumstances, and others not at all or even counter productive and
unhelpful. Few styles are effective all the time, even in the same substantive dispute
context. Frequently, the teaching and training of negotiators and mediators reifies and
promotes a particular style as the best or preferred and excludes or discourages the practice of
strategies and techniques that are viewed as inconsistent with that model. For example, for a
mediator to make a tactical decision to meet privately with the parties in caucus, should not be
ruled by habit or style choice, but by the circumstances and an assessment of risks and
advantages of the decision.

Not surprisingly, all of the prevalent present day styles and approaches to negotiation and
mediation have antecedents in history. Whether drawn from an emphasis on the desire to be
cooperative, the inclination to be competitive, the desire to be moral, or need to be pragmatic,
each style of negotiation or mediation has a useful purpose but is not sufficient in and of
itself. For practitioners, the risk is to allow their style of practice to become bound to particular
context or for them to use the same style in all dispute contexts.

Lawyers and business people, for example, are prone to “rationally” view disputes as largely,
“just a matter of money.” They assume the predominant source of conflict to be economic, or
the scarce allocation of resources, be they time, money, or energy. The issues are likely to be
framed in legal terms, based on an assessment of what a court might do, and subjected to a
cost-benefit analysis. This style is less focused on the relationships of the people involved than
on reasoned analysis and the use of logic and persuasion to reach an “objectively” based
agreement. Their structuring of the process closely follows the familiar form of a case settlement
conference common in legal proceedings. As well, whatever the origin of the dispute, the matter
is likely to be transformed and framed primarily as a legal matter with legal issues predominant.
In this process, each side presents an opening statement arguing their legal positions based on
suppositions of what a court might consider and determine were the matter to be adjudicated.
The respective parties are commonly separated from each other, with either their respective
attorneys or a mediator going back and forth and meeting with each side separately in a
“caucus” so as to minimize their need for personal contact. The working assumption is that
personal interaction between parties in conflict will result in distracting altercations. (Menkel-
Meadow, C., “The Transformation of Disputes By Lawyers: What the Dispute Paradigm Does
and Does Not Tell Us,” Missouri Journal of Dispute Resolution, 1985)

Negotiation or mediation practiced by those practitioners with a counseling or mental health

background, by contrast, veers toward viewing the source of conflict to be faulty
communications between people and their failure to acknowledge or appreciate others interests
and needs. There is a tendency to rely on the familiar strategies and techniques that
emphasize face-to-face personal interaction between disputing parties in order to re-establish
trust and communication between them. Whether done out of habit or by intention, this style
often serves, intentionally or unwittingly, a competing therapeutic purpose.

Each of these styles reflect, alternatively, the weight and importance given to either the
business and legal aspects, or the relational personal dynamics of the dispute, often at the
expense of the other. Too firm an adherence to style can block from the practitioner’s view that
a business dispute over a contract may be, at core, a personal dispute or conversely, that a
family dispute is about differences concerning business or financial matters. The framing of a
dispute as a legal or personal matter, along with the negotiation style preference used to
manage the matter, are as much, or more, conditioned by the professional discipline,
background and training of the practitioner. As a result, whether out of a sense of the need to
protect professional territory and prestige, or a belief in their superior competency, lawyers
presume greater ability to negotiate business and legal matters, while mental health
professionals presume to have greater expertise in family and other relational disputes. This
fragmentation of a dispute can often constrict consideration of alternative approaches to
settlement and sometimes the success of the negotiation. Business disputes are seldom, if
ever, just a matter of money, and family and personal conflicts are seldom just about
relationships.

The choice of style is also influenced by marketing consideration. Many lawyers have taken to
advertising or identifying themselves as “lawyer mediators,” or as “collaborative lawyers” in an
effort to present themselves as more reasonable, humane and efficient. In recent years, many
law schools have sought to encourage that trend by presenting courses in “legal mediation” and
“mediation advocacy.” Correspondingly, many mediation practitioners whose profession of
origin is in a mental health or communications profession advertise the therapeutic values of
mediation. Courts and agencies refer matters to mediation practitioners less because of their
negotiation and settlement skills, but based on their presumed substantive expertise and subject
matter familiarity. “Attorney mediators” are commonly preferred to manage property and
business issues, while counselor mediators, or non-attorneys, are chosen in family matters. This
conventional piece-mealing of conflicts by label and the presumption that a particular style of
negotiation or mediation is necessarily suited to a matter on that basis belies a limited
understanding of negotiation or the mediation process. In so doing, there is a heightened risk
that the core strength of negotiation will be lost. An effective agreement requires a systemic
understanding of conflict and obligates taking account of all of the elements of a dispute
including, the personal and emotional, business and financial, legal, and moral aspects of the
matter. To do otherwise limits the range of strategies and tactics a practitioner might draw
upon from the archive of negotiation practice developed through the centuries, regardless of
context, culture. Strategies and techniques commonly used in business matters can be usefully
applied in a family, workplace, or other matters, and there are more similarities between political
and international negotiations between countries and a divorce, will dispute or family matter
than there are dissimilarities.

The institutionalization of negotiation and mediation practice has also strongly influenced styles
of practice. Courts, government agencies, school systems, universities, corporations, and cyber
space businesses have, not surprisingly, found those conflict management modes far more
efficient and flexible in moving disputes and cases through bureaucratic systems. However, the
strengths and benefits of negotiative proceses can also be problematic and a weakness when
incorporated into highly structured organizations. The processes must necessarily become
more formalized and uniform in application; the role of the mediator, ombudsperson, or other
third party, must be more tightly prescribed, and clear parameters pre-set for the range of
acceptable agreements. The risk of the third party becoming, or being perceived to be, an agent
of the organization remains a constant concern. These have been issues of concern in large
scale damage claim matters, such as the program for the compensation of victims of the
September 11, 2001t terrorist attack on the World Trade Center in New York City, Hurricane
Katrina in New Orleans in 2005, the BP Gulf Oil Spill of 2010, and home mortgage foreclosure
mediation programs around the country, as well as in the use of mediation in the administration
of individula educational planning (IEP) in special education, and in many government agency
regulatory negotiation processes. (Feinberg, Kenneth, What Is Life Worth, 2005; Benjamin,
R.D., “’Mediation Is A Gamble’: A Sobering Review And Critique Of Mortgage Mediation
Programs,” Nov. 2010)

The ideal of a third party having the range of motion to encourage creative thinking about the
available options to settle disputes---“outside the box” ideas--- and to have the flexibility to draw
from a variety of negotiative styles, strategies and techniques, can be easily compromised or
corrupted, even if unintentionally, by program policies and operating rules. The design of a
dispute resolution system must include suffcient awareness of what is required for an effective
negotiative process if the negotiative process is to remain effective. Mediators,
ombudspersons, and other third parties have often become mere ministerial agents doing
essentially giving details of possible pro-forma outcomes, or at the other extreme, pressed into
being quasi-arbitrators, giving evaluations and recommendations on submitted claims.

The risk of practice style orthodoxy.

The advocates for each model or style of practice form tend to form interest groups that lobby
for recognition, assert the need for special training and expertise, and seek to establishes a
certification process, or even pursue licensure. Specialization is not a surprise from an
evolutionary perspective, especially in the Western techno-rational culture where being
recognized as a specialist has greater prestige and marketing value. (Adler, Peter, “Protean
Negotiation: Rejecting Orthodoxy and Shifting Shapes, 2006) Specialization can further the
competency of practitioners, but may limit flexibility. The orthodoxy some adherents profess or
display for a particular style poses a risk to effective practice and public acceptance.

The study of natural history of negotiation provides an effective counter to stylistic orthodoxies
and rivalries that threaten to interfere with creative practice and competency, but also give
validity to strategies and tactics employed throughout history which are too often dismissed as
anachronistic. If the primary purpose of human negotiative behavior is to provide a safety valve-
--a pragmatic and practical means of bridging differences in ideology, values and purposes
between people---then negotiation and mediation practice must remain flexible in
approach, informal and systemic in focus. This is all the more important in an increasingly
complex and technical world, has been a systemic focus, flexibility and informality. For
example, the use of ultimatums, or other heavy-handed negotiation tactics that have been used
through the centuries and which are often deemed as inappropriate by many modern day
practitioners, continue on occasion to serve a necessary purpose.

The human instinct to cooperate, to survive and thrive as a species, has fostered our active
negotiative behavior for as long as we have been a distinct species. As hunters and gatherers,
we had to cooperate about where and how to hunt and what to gather. Later, some estimated
4000 years ago, as the “productivities of farming gave rise to governments,” negotiation was
most surely advanced. Jared Diamond, an eminent evolutionary biologist, has observed that in
addition to climate and geography, one of the more important determining factors in the wealth
of a country is the presence of ‘inclusive political and economic institutions.’ The level of
inclusiveness is the extent to which the general population is allowed and encouraged to
participate in decision-making, thereby fostering an incentive to work. This process is
fundamentally dependent on people’s ability and willingness to negotiate. (Diamond, Jared,
“What Makes Countries Rich or Poor?” New York Review of Books, June 7, 2012)

The Evolution of Negotiation and Mediation Approaches Through History

There have been five discernible approaches to negotiative behavior that have evolved in
successive periods of human history. Each form, or approach, reflects characteristic behaviors
and strategies to manage the nature of the conflicts they have had to manage. First, in early
human history, with the constant wars, the primal negotiation approach was focused primarily
on survival. The second form came about in the 16th century, during the Renaissance. The
internecine wars between city-states and the expansion of trade required approaches to
negotiation to became more conscious and strategic. In the 17th and 18th Century, the
Scientific Revolution and Enlightenment fostered a rationalist approach to negotiation that
carried through until the early 20th Century. In the current fourth period, since World War II in
the mid 20th Century, in an increasingly complex technological world, the rationalist approach to
negotiation and mediation have been institutionalized and refined. And, emerging is a fifth, post-
modern approach to negotiation based on studies in neuroscience and cognitive psychology
which have challenged the premises of rational decision-making and necessitate taking account
of peoples’ “predictable irrationality” in their decision-making.

In each negotiation period, the purposes served, how people have viewed the process, their
willingness to negotiate, and the predominant strategies and techniques developed and
employed have been adaptations to the social, cultural, and political environment of the time. In
the course of the evolution of negotiation behavior and rituals, negotiation and mediation
practice has become an increasingly more conscious and intentional activity. Each approach
has incorporated the strategies and techniques of the earlier forms and present day
negotiations, regardless of dispute context, reflects strains and visible traces of many, if not all,
of the prior forms of negotiation practiced in earlier centuries. Few strategies or tactics have
become extinct and many so called primitive, or outmoded, tactics remain relevant or have been
refined and adapted for current use.

1. Primal Negotiation

In early history, especially in the absence of any semblance of a central governing authority,
warfare and mayhem between rival groups or tribes was common and largely unchecked. This
was the “all against all” world Thomas Hobbes described in The Leviathan (1651). Negotiation,
was very much in evidence, although rudimentary in form, not too many steps removed from the
conflict management behaviors of other animal species used to end fights. Similar in purpose,
the focus of this negotiation approach is to serve the human instinct to survive and every war or
hostile action must be brought to an end if that is to happen. This primal form of negotiation is
largely unschooled and more reliant on visceral instinct than a planned, overtly conscious
activity.

Contrary to popular thinking, war and negotiation are not polar opposites, or necessarily, an
either/or proposition. If not symbiotically related, they are complementary to each other.
Throughout history, they have often been indistinguishable from each other; some people
consider warfare as an extension of politics, or negotiation by other means, and alternatively,
view negotiation as a form of warfare. The more severe the human aggression, the greater the
need will be, at some point and in some manner, for a cooperative cessation of the hostility to
re-stabilize the relationship, or just survive. Even vengeful blood feuds and protracted conflicts
must end at some point. And, sidestepping the discussion of whether warfare is an innate
human trait, there is no getting around the ongoing inevitability of conflict between people, some
of which threaten to become violent.

The management of the prosecution of wars, their ending, and aftermath relations between the
parties, has been a primary driver and significant contributor to the development of negotiative
behavior over the centuries. As warfare became more complex, the formation of intricate,
precariously balanced alliances to defeat a common enemy, the negotiation of peace treaties,
and administration and occupation of conquered territories, required effective negotiation. If
poorly negotiated, the seeds for future conflict would be sown. Historians generally agree that
the dubious terms of the Treaty of Versailles, ending World War I in 1919, contributed to World
War II two decades later. In the same way many advancements in medical treatment and health
care have paradoxically arisen out of exigencies of caring for battlefield injuries and traumas, so
too have many negotiation strategies and techniques developed from the urgency of ending
wars.

The interplay between war and negotiation has been ongoing throughout history. One of the
earliest recorded discussions is found in the writing of the Greek historian, Thucydides, who
considered the benefits and risks of negotiation in the Melian Dialogues in his chronicle of the
30 year Peloponnesian War between the Spartans and Athenians. He described the Athenians
choice to effectively massacre the Melians ---a nominal group loosely aligned with the Spartans-
--instead of negotiating a truce. This was an early demonstration of the “shock and awe” tactic
that has been used in warfare to the present day, which is designed to break the will of the
enemy. (Kagan, Donald, The Peloponnesian War, 2003) Von Clausewitz, the 19th Century
German military and political theorist and architect of realpolitik, succinctly and famously offered
in his work, On War (1831), that “war is the continuation of politics by other means.” While
discomforting to those who would draw a bright line between the barbarism of warfare and the
assumed civility of negotiation, they are closer in practice and purpose than most people and
practitioners recognize. Many warfare strategies and techniques have been incorporated into
negotiation and mediation practice, and negotiation strategy is a regular part of warfare.
(Benjamin, R.D., “The Guerrilla Mediator: The Use of Warfare Strategies in the Management of
Conflict,” 1999)

Military generals have been some of the most committed practitioners and greatest contributors
to the development of negotiation strategy. Perhaps they became such fierce proponents being
so closely perched to the death and destruction of warfare and compelled to deal with survival
moment to moment. U.S. President Dwight D. Eisenhower, formerly the Commander of the
Allied Forces in World War II, which itself required masterful and considerable negotiation
acumen amidst a minefield of politics among French, British, and American Generals, has
retrospectively been accorded greater respect as an effective world leader. Although frequently
criticized as too cautious and tentative, Eisenhower insisted on remaining open to negotiated
settlements short of “victory” throughout the Cold War, where he was often strenuously pressed
to resort to force. (Powers, Thomas, “He Got the Big Things Right,” NYRB, 35-38, April 26,
2012). Many years later, in the first decade of the 21st Century, General David Petraeus,
similarly recognizes how the nature of war has been transformed; unlike the past, the “enemy” is
not a readily identifiable uniformed army clearly distinguishable from the civilian population. In
his career, based in part on the Viet Nam War experience, he formulated the use of strategies
and approaches to neutralize insurgency actions in the recently ended Iraq War and continuing
Afghanistan War, which rely heavily on negotiative and mediative strategies and techniques that
would be familiar to any experienced mediator. (Petraeus, Gen. David H., The U.S.
Army/Marine Corps Counterinsurgency Field Manual, 2007) It is important to point out, this new
form of warfare, not unlike many complex negotiations, is filled with ambiguity and often
“unsatisfying” especially to those who expect war to be a clarifying, determinative and final end
to a conflict. Negotiation and war are alike; they are both messy and “success” of the operation
is often difficult to measure. (Nagl, John A., “The Age of Unsatisfying Wars,” New York Times,
June 7, 2012; Nagl John A. Learning to Eat Soup With a Knife, 2005; Van Creveld, Martin, The
Transformation of War, 1991) All that has changed over time may be some shedding of the
illusion that the management of difficult conflicts has ever been or is likely to be otherwise,
regardless of the mode employed.

Conflict scenarios where survival is at stake occur in the present day, almost as often as they
ever have and primal negotiation approaches, strategies and techniques remain necessary and
relevant. Wars, hostile actions, hostage negotiations, and even piracy on the high seas, are but
a few of the extreme circumstances where negotiation is employed at some point to resolve the
crisis. While some think such situations are more the exception than the rule, aspects of such
extremes can crop up in many matters which are otherwise viewed as unexceptional. The
parties in a business matter, for example, can become intensely angry and threatening, with or
without an apparent triggering incident; feeling betrayed and mistreated is the starting point of
most disputes. Similarly, in a divorce, the summary and unilateral closing of bank accounts by a
party, or the threat to “take custody” of the children can lead to a cascading of worst fears and
the feeling that very survival is at stake. Whether those fears are real or imagined, people will
commonly justify the use of any means necessary in their defense, including deception,
subterfuge and other primal negotiation strategies and tactics, if they negotiate at all.
Another long standing primal negotiation strategy that can trace it’s origins to early human
history is “don’t ask-don’t tell.” Minority groups living in dominant cultures, be they racial,
ethnic, religious, of different sexual orientation, or merely an immigrant or foreigner, have
always had to literally negotiate their survival and existence with the dominant community. DA-
DT evolved as an informal and non-verbal negotiated arrangement where people deemed
marginal were allowed to eke out a living by doing distasteful but necessary tasks or work while
taking care to remain largely invisible. People of color, Jews, those who are LBGT, and most
immigrant groups have all had to broker that deal to survive in the past, and for some, for their
whole history. Many gay and lesbian entertainers or actors over the years, including Liberace or
Rock Hudson, for example, escaped the condemnation of an otherwise homophobic American
culture in the 1950’s and 60’s as long as they did not openly assert their sexual orientation.
Similarly, DA-DT tactics allowed the Jews of Europe to survive for centuries by serving the
dominant Christian culture as bankers, business people, and doctors, thought then to be
unsavory work. They did, however have to live in Ghettos and endure the occasional pogrom or
inquisition.

In the primal negotiation approach, because survival is the preoccupation of those concerned,
the negotiative behaviors are more a matter of instinct and ritual than conscious and intentional
actions and little or no attention is given to standards of practice or ethics. The negotiator’s or
mediator’s primary focus is on presenting themselves as sufficiently authentic so as to elicit trust
and credibility necessary from the other party or parties to support the continuation of the
negotiation process. (Benjamin, R.D., “Terry Waite: A Study in Authenticity,” Mediate.com,
2002)

In most primal negotiation scenarios, there is a significant power balance differential between
the parties. The victors of a war, at first glance, have all the power and little need to negotiate
with the losers. At the same time, however, an opponent with little to lose can be dangerous,
and the cost of killing everyone is high, both emotionally and financially. In addition, the cost of
occupation and loss of resources from a conquered territory can be considerable. Therefore,
notwithstanding the power balance differential and the not uncommon use of ultimatums and
other coercive tactics that do not conform to the modern day rationalist notion of a “level playing
field,” there is often some form of leverage available to the “loser.”

The difficult, or even horrendous, circumstances under which many people felt forced to
negotiate in order to survive likely gave rise early on in history to a palpable dislike, and
sometimes outright disgust, for the negotiation process. Historically, negotiation has been
primarily a means for “losers” to adjust their circumstances just enough to go on living and
seldom was it a pleasant experience. Certainly the modern day notion of a satisfactory, let
alone “win/win,” outcome never came to mind. The negative association stuck and has
continued on through the centuries. This is exacerbated by the common present day
understanding of negotiation being predominantly of the primal form, where deception, coercion
and other tricks are the norm. Donald Trump, and others of his ilk, who proudly claim to
negotiate by intimidation, does not help to alleviate the public misapprehension of negotiation.
At the same time, some primal negotiation tactics continue to serve an evolutionary purpose
and continue to be useful in appropriate circumstances.

2. Strategic Negotiation

The active use of strategic thinking, conscious and intentional planning directed toward
manipulating people and circumstances to bring about a desired outcome became a core
element of negotiation in the course of the 16th Century Renaissance. This period was
tumultuous with the Catholic Papacy instigating wars against many of the Italian city-states,
while, at the same time, other foreign powers were also battling for influence and control.
Political and military alliances shifted continuously. This time was also a period of burgeoning
commerce and economic growth with the accompanying political intrigues which required
people to develop a heightened awareness of the actions and motives of those around them
and to assess who were potential allies and who were enemies. Success, and sometimes
survival, depended on the ability to anticipate and counter deceptions, and alternatively, to be
strategically deceptive for their own protection and advancement.

Shakespeare’s 1596/98 play, The Merchant of Venice, conveys an apt sense of the business
twists and turns and the fierceness of negotiations during this period, centering on a loan deal
gone bad between a wealthy Venetian merchant, from whom the Jewish money-lender Shylock
seeks to collect his “pound of flesh” under the terms of the agreement. In this social and political
climate, Nicolo Machiavelli wrote The Princearound 1512, which would become one of the most
important texts relevant and apocryphal to the nature of negotiation practice to the present day.
His writing offered a foundation for the discussion of leadership, decision-making, and the
exercise of power in every century thereafter. The phrase most notably associated with
Machiavelli is, “the ends justifies the means.” His name since then has alternatively been reviled
as a cynical, opportunistic, political realist, willing to act without scruples, or as a civic humanist,
merely seeking to teach people to recognize the deceptions behind good appearances in order
to be on guard and prepared. This tension between reason and honesty on one hand, and the
necessity for strategy, games and deceptions in politics, business, and life, remains as vital and
relevant today as it was 500 years ago, and even frames the discussion of the role and ethical
duties of negotiators and mediators in the present day.

Machiavelli’s work also contributed to the ambivalence many people had then and still have
today about negotiation. During, this time, deal making would be alternatively viewed, on one
hand as a multi-dimensional and complex art form, and, on the other hand as a sleazy back
room affair. Notwithstanding the varying interpretations of Machiavelli’s motives and purposes,
however, his treatise marks the historical point in time when conscious and intentional strategic
planning became an important, if not essential, component of negotiative behavior and practice.
Since then, serious negotiators and mediators have paid close attention to the study of the
conflict terrain, including an assessment of possible alliances, sources of resistance, available
resources, the surrounding politics of a dispute, and have formulated approaches to the parties
and circumstances that might be most likely to bring about an agreement. While he wrote about
political conflict and management, the discussion is directly relevant to every dispute context
regardless of the substance matter.

Machiavelli is the effective progenitor of the strategic negotiation approach, bringing to the fore
the necessary plotting and planning that must be done to bring to fruition even the most noble
ideas or policies. This involves the necessary discussion of the intentional use of deception as
a tactic: when is it appropriate and how much? While the use of too much deception can
contaminate the proceedings and breed distrust, encouraging the consideration of different
ideas often requires a theatrical presentation. Reason, logical persuasion are seldom
enough. This remains a troublesome issue for many negotiation and mediation practitioners to
this day. The “truth,” if there is one, is not only the first casualty of war, but also a casualty of
negotiation and mediation. The quest for the truth of a matter in dispute is often incompatible
with the pursuit for a pragmatic, interim workable agreement. While difficult for many to
understand, negotiators must come to terms with the realization that the perfect and “right”
solution to an issue cannot be allowed to become the enemy of an adequate one. Especially in
Western culture, “the intellectual and moral traditions have been shaped by an explicit and
consistent fear of deception.” Truth and certainty are valued and juxtaposed with deception and
falsehoods which are aligned with evil. (Rue, Loyal, By the Grace of Guile: The Role of
Deception in Natural History and Human Affairs, 1994; Benjamin, R.D., “Managing The Natural
Energy of Conflict: Tricksters, Mediators and the Constructive Uses of Deception,” in Bringing
Peace Into the Room, Bowling, D. and Hoffman, D. eds., 2004)

All animal species, including human beings, engage in forms of deception to survive and
procreate. The more complex the society, the greater the need for deception---both the self-
deception of ourselves and the deception of others. In fact, as Robert Trivers, a noted
evolutionary psychologist observed, “to effectively deceive others, requires first deceiving
ourselves.” (Trivers, Robert, The Folly of Fools: The Logic of Deceit and Self-Deception in
Human Life, 2011) This is nowhere more apparent than in negotiation and mediation of a
conflict where the parties’ differing narratives of the dispute must be script edited so as to
integrate and acknowledge the often widely divergent and contradictory stories of each
participant, while holding tenuously to some recognizable strand of reality. At the same time, for
a mediator or negotiator to be overly manipulative or deceptive risks breaching the trust of the
other party or participants and losing credibility. While recognizing there is no avoiding the
necessity for the use of some deception, therefore, never use more than is necessary.

3. Early Modern Rationalist Negotiation

As a result of the Scientific Revolution of the 17th Century and the subsequent Enlightenment of
the 18th Century, how people in the Western cultures viewed the world around them shifted
dramatically. And, while this shift originated in the study of physical phenomena, it was rapidly
extended to the study of politics, society, and therein, conflict. The quest for the truth, previously
pursued by and through religious faith, was supplanted by a faith in reason, and now began to
be pursued by and through rational thinking. Negotiative behavior and practice came to be
viewed as a rational enterprise.

Rene’ Descartes, a French mathematician and philosopher, was one of the earliest purveyors of
rationalism. His famous dictum, “cogito ergo sum,” “I think therefore I am,” emphasizes the
importance and the superior value of objective knowledge, as opposed to the subjective
knowing of how the world works. Within a hundred years, in 1687, Issac Newton would confirm
this paradigm shift in his monograph, The Principia, providing mathematical formulas for the
precise and predictable measure of principles of mechanics, gravitation and motion. In
subsequent centuries, Newton’s formulations have led many to believe there are similar
immutable laws of nature that extend beyond physical phenomena and apply to human behavior
and interactions as well. All that remains is to discover those principles and apply them. To
apply principles of reason to society would be the work of Voltaire and other philosophers of the
Enlightenment.

The collective power of their work gave rise to the Myths of Truth and Rationality, which still
undergird Western Culture to this day. As Isaiah Berlin, the noted 20th Century historian and
philosopher observed, there are three premises, not necessarily true, but which are widely
accepted as fundamental to the Western canon of thought: 1) for every problem or question,
there is right and truthful answer; 2) that right answer is discoverable; and, 3) there is only one
truth. (Berlin, I., ed. H. Hardy, The Crooked Timber of Humanity, 1998; Benjamin, R.D., “The
Physics of Mediation: Reflections of Scientific Theory in Mediation Practice,” 1990) As myths,
they are not lies per se, but rather, stories of significance people use to make sense of the world
around them. Many came to believe that conflicts could easily be resolved by the power of
reasoned thinking and discussion.
At roughly the same time during the 18th Century many of the European Nations began to
emerge and moved through a rapid succession of alliances, wars, and treaties. Negotiative
processes became bureaucratized in the form of diplomacy. In contrast to Machiavelli, a century
earlier, Francois de Callieres, an envoy of Louis the XIV, wrote On the Manner of Negotiating
With Princes, in 1716, effectively applying the thinking of the Enlightenment to negotiation
practice. His reasoned approach stressed the importance of integrity and relationship in
diplomatic affairs. Notwithstanding his aspirations for the more reasoned practice of negotiation,
however, the primal and strategic negotiative forms necessarily remained. In fact, the rivalries,
politics, and wars between emerging European nations, each vying for dominance, was a
display of power negotiation. By the mid 19th Century, the compelling Prussian Chancellor, Otto
von Bismarck, would be actively using Realpolitik tactics to coalesce the Prussian state. To the
extent this form of political realism presumed to be a calculating, purely pragmatic, and rational
approach to controlling events it was a product of the Enlightenment. And, at least not unwilling
to appear humanistic and liberal---some would say deceptively--- when such an appearance
served the purpose of obtaining an objective.

Toward the end of the 19th Century into the early 20th Century, after the debacle of World War
I, there were some efforts to apply reason to statecraft. President Woodrow Wilson sought to
devise a League of Nations, albeit unsuccessfully, as a forum where nations could come and
reason together as part of his pursuit make that war “the war to end all Wars.” In the same vein,
20 years later, in 1938, British Prime Minister Neville Chamberlain sought to negotiate the
Munich Agreement---known by some as the Munich Betrayal---with German Chancellor Adolf
Hitler, to head off World War II in pursuit of “peace in our time.” Both brought to bear the
rationalist principles of Enlightenment believing the resolution of reason merely required the
application of reason to resolve conflict. Wilson was rewarded for his efforts by being cast as a
naïve ideologue, and Chamberlain’s name became synonymous with appeasement. <

Current day negotiative practice and teaching has drawn heavily from the culture of science and
Enlightenment thinking. The belief in Rational Decision Making Theory remains prevalent; many
practitioners still presume people to be rational actors who, if given the opportunity, will
predictably make decisions out of their calculated self-interest. Many of the terms used to
describe negotiation and mediation practitioners and practice are quasi scientific in origin. The
mediator, for example, is referred to as a “neutral,” “impartial” and “objective” third party, and
practitioners think of themselves as “analytical” “problem solvers.” The language is not
necessarily inappropriate, but it is revealing of an effort to present and cloak negotiation and
mediation practice under the mantle of being a rational and scientific endeavor.

The rationalist thinking frame has, without question, given negotiative processes a useful and
powerful model of practice that has brought a good measure of legitimacy to the conflict
management field---although the term “field” is used loosely, intending to describe those who
actively try to manage conflict, rather than a clearly defined and distinct professional discipline.
This same rationalist paradigm, however, has also been problematic for the acceptance of
negotiation and mediation by the general public and many professionals. This is because being
rational is not necessarily the same as being pragmatic and sensible. While it may be sensible
to settle a dispute, the process used to negotiate and the resulting agreement may well defy
reason and logic. Further, for many inveterate rationalists who believe there is a correct answer
to a problem or a proper resolution for a complex issue, negotiation or mediation seems
unnecessary, or worse, obligates an unjustified compromise and denial of facts. In short,
participation in negotiation is viewed as a derogation of the truth.

4. Modern Techno-Rational Negotiation

In the mid 20th Century, after World War II in the wake of Hiroshima and Nagasaki under the
threat of a nuclear World War III, the principles of the earlier rationalist negotiation approach
were studied with renewed vigor and intensity. The classic film, Dr. Strangelove (1964), starring
Peter Sellers as a deranged German scientist who accidentally-on-purpose starts a nuclear war,
captured the mood of the time. The nuclear threat congealed into the geo-politics of the Cold
War that pre-occupied much of the world as either players or pawns, between 1949 and 1989.
There is no question but that it was fertile terrain for those interested in negotiative
processes; people suddenly became serious about exploring alternatives.

Negotiation began to be approached as science. The process was effectively militarized and
industrialized. Game theory and computer modeling were wed to the study of negotiation and
warfare strategy. Academic and military think tanks, one of earliest of which was the Rand
Corporation in 1948, were formed to study, among other things, war and negotiative strategies.
They postulated the doctrine of Mutually Assured Destruction (MAD), perhaps the ultimate
refinement of the primal negotiation tactic of the ultimatum. Those nations with nuclear arms
clearly have the bargaining advantage against those who do not and are in a position of power
better able to make demands and set terms for others. And, against others similarly armed, to
counter any threat with equal force.

In this atmosphere, Howard Raiffa and Robert Axelrod, two of the most compelling early
theorists in the conflict management field, began in earnest to examine the science of
negotiation and used game theory to model the rational-choice paradigm. The Prisoners'
Dilemma exercise, which purports to demonstrate the proposition that people will predictably
make a reasoned choice to cooperate rather than compete with one another, if given the
opportunity, was developed in this period, and is still widely taught. (Raiffa, Howard, The Art and
Science of Negotiation, 1982; Axelrod, Robert, The Evolution of Cooperation, 1984) It is
important to note, however, some years later Axelrod observed the limits of modeling noting that
people tend to be more adaptive rather than rational in their decision making. He concluded
that, “(a)lthough people may try to be rational, they can rarely meet the requirements of
information or foresight that rational models impose.” (Axelrod, Robert, The Complexity of
Cooperation, 1997)

This post war attention to conflict management, negotiation and mediation, trickled down from
the macro level of Cold War geo-politics to be applied to community conflicts in the wake of the
civil unrest and civil rights movement of the 1960’s and into the early 1970’s. By the late 1970’s,
these new negotiative approaches began to seep into the legal system in the management of
divorce and family matters. By the late 1980’s and early 1990’s, mediation came to be
increasingly used by the courts for business and commercial disputes. The courts, judges,
lawyers, and academics were initially skeptical, and sometimes downright hostile, to alternative
dispute resolution processes, and concerns persist in some quarters. The commonly expressed
reservation is that more informal modes of dispute resolution would undermine and supplant the
role of the legal system and compromise the rights of minorities, by creating a “second class”
justice system. (Grillo,Trina, “The Mediation Alternative: Process Dangers for Women,” Yale
Law Journal, 1991; Merry, Sally Engle, and Milner, Neal, eds., The Possibility of Popular
Justice, 1995) Over the course of the last 20 years the legal landscape has changed
significantly with mediation and negotiation being far more prominent in law school curricula and
practice.

The second half of the 20th Century was socially, politically, and technologically, volatile and
negotiative processes became more necessary than ever to manage the accompanying
stresses. Internationally, the geo-politics of the Cold War seemed to be continuously
threatening, while the domestic affairs of many countries were occupied by popular movements
for civil rights. In the United States there was a dramatic shift from the staid Eisenhower years
of the 1950’s into the “New Frontier” and “Great Society” of the Kennedy and Johnson era, all of
which had a significant impact on family relationships, business relationships, and the
workplace. During this relatively short time frame, in historical terms, there has been a veritable
revolution in the nature of marriage and the family, and gender roles in families and in the
workplace are more fluid than ever. (Coontz, Stephanie, The Way We Never Were, 2000, and
The Way We Really Are, 1997)<

This laid the foundation for the popularization of negotiation. Harvard professors, Roger Fisher
and William Ury, introduced the principled, interest-based model of negotiation in a book that
has become the primer in the conflict management field, Getting to Yes (1981). Fisher’s
background included the design of the negotiation process for U.S. President Jimmy Carter’s
successful Camp David Accords, bringing about the historic peace treaty in the Middle East,
between Egyptian President Anwar Sadat and Israeli Prime Minister Menachem Begin in 1978.
Fisher came from the diplomatic corps, having worked on the formulation of the Marshall Plan
after World War II, and followed in the tradition of Woodrow Wilson and De Callieres, dedicated
to the belief in civil discourse.

While a slim volume, however, Getting to Yes coherently packaged the same rationalist model
of negotiation for use in any dispute context, from an international geo-political matter, to a
business or divorce conflict. By so doing, they effectively re-invented the negotiative process,
making it over into an intellectually honest and principled activity based on reason and rational
choice. This cleansing, however, required the minimization of the history of negotiative
processes and the distancing of their model from the traditional notions of negotiation that had
grown up in earlier centuries. The pejorative reputation of negotiation as a manipulative,
deceptive and dubious activity, had to be disavowed.

From Fisher’s rendering, the role of a negotiator or mediator is fashioned as one with the calm,
dispassionate demeanor associated with an eminently reasonable person. The role of the
negotiator, and even more so, a third party mediator, is to be an “objective, neutral and
impartial” party---not unlike a judge, except that the mediator does not render judgments---, who
methodically frames the conflict and “separates the people from the problem.” The emotion of
the dispute, while acknowledged, is moderated and minimized as much as possible in favor of
reasoned analysis and discussion to solve the problem at hand. For many, the confusion
between the role of a mediator and a judge, or between arbitration and mediation, persists in
part because the description of mediators as objective neutrals is so close akin to that of a judge
or arbitrator. Nevertheless, for the first time in history, the formal practice of conflict
management and mediation began to emerge as a distinct career Professional organizations
began to form and actively promulgate standards of practice as is to be expected in a ‘techno-
rational’ culture. Mediators and ombudspersons sought to be granted the mantle of technical
experts in conflict management.

Drawing from the scientific tradition, represented themselves as neutral, objective,

dispassionate professionals who were disciplined to stay “above the fray” with no interest in the
dispute outcome. (Schon, D., The Reflective Practitioner, 1983; Benjamin, R.D., “The Risks of
Neutrality: Reconsidering the Term and Concept,” Mediate.com, 1998) With this structuring of
mediation and negotiation in the modern rationalist tradition, the formal practice became more
respectable and acceptable as an acknowledged part of, and complement to, the legal
system. In addition, mediation and negotiation, having become a rational enterprise seemingly
susceptible to study and evaluation, could also be included in the academic curriculums of law
and other allied disciplines.

Negotiative approaches to conflict have become so alluring that many practitioners and theorists
now consider negotiative practice as an ideological belief system in its own right. For them,
mediation and negotiation are not merely pragmatic means of managing conflicts, the processes
are ends in themselves. Engaging conflict offers an opportunity, and negotiation a means, to
transform personal relationships, the functioning of society and, quite possibly, human nature
itself. And, in the social and political spheres, a reasoned civil dialogue is commonly advanced
as an enlightened form of self-governance. It is the foundation of the deliberative democratic
process whereby people can participate in a planning process for their own welfare and in the
pursuit of social justice and peace in the world. (Elster, Jon, Deliberative Democracy, 1998;
Forester, John, The Deliberative Practitioner, 2001) Similarly, the practice of “transformative”
mediation is less directly about the resolving the particular conflict at hand, than it is an
opportunity to change the nature of the interaction between the participants. The model focuses
as much, or more, on the therapeutic purpose of the dialogue as it does on pragmatic
management of the dispute. The outcome is of lesser importance than the resulting
“empowerment and acknowledgement” that might be gained by each of the parties of the others
involved. (Bush, R. and Folger, J., The Promise of Mediation, 1994) Sometimes there is a
religious overtone. John Paul Lederach, a Mennonite, actively pursues peace building, and
employs negotiative strategies to engage people in conflicts throughout the world in an attempt
to transcend the cycle of violence and pursue peace-building. (Lederach, J.P., The Moral
Imagination, 2005)

The structuring of the mediation process prepared it to become institutionalized and legitimated
as a regular part of the legal landscape beginning in the divorce context in the mid 1970’s. With
increased societal mobility there was an increase in the number of people seeking divorce and
forced to confront an outdated, fragmented and formalistic legal system that was glaringly ill
suited and cumbersome. Not surprisingly, this social phenomenon began in California, which
was among the first in the country, and the world for that matter, to formally include marriage
conciliation and mediation as court services. Shortly thereafter, a private market for divorce
mediation emerged throughout the country, based on the work of O.J. Coogler, an Atlanta
lawyer, who structured the mediation process so that it could be replicated and taught, together
with the substantial contributions of John Haynes, a Professor at the School of Social Welfare at
the State University of New York at Stony Brook. (Coogler, O.J., Structured Mediation in Divorce
Settlement, 1978; and Haynes, J., Divorce Mediation, 1981). The structuring of the process
allowed it to spread nationwide and abroad by the end of the 1980’s. This development of a
mediation structure and format allowed the process to be applied and adapted beyond divorce
and family matters to many other dispute contexts and the core of the model remains in use.

Since that time, the mediation process, in varying forms, has been institutionalized, made a part
of the legal system, and actively used to remediate and compensate people injured by every
variety of natural disaster and class action legal claim. Mediative processes have been used to
settle class action claims, large scale property damage claims, requests for special educational
services, and most recently, the resolution of home mortgage foreclosures in state mediation
programs nationwide. As discussed above, the institutionalization of the mediation process,
while clearly necessary, is not without valid concerns to the quality of the process.

The rationalist approach has provided negotiation and mediation practitioners with a powerful
thinking frame that has significantly advanced conflict management practice. At the same time,
in recent years especially, the sufficiency of the rationalist framing has been called into
question. Studies in neuroscience and cognitive psychology have compelled a re-examination
of the working assumption that people ---especially in conflict situations---are rational
actors. Evidence is mounting that the thinking of most people, including the professionals and
mediators involved and trying to manage the matter, are “predictably irrational” in their decision-
making and judgments.

5. Post-Modern “Rationally-Irrational” Negotiation

The present day conflicts and issues are more complex and level of antagonism between
people more strident than at any time in recent memory for three reasons: 1.) many of those
issues present “wicked problems” that “…are difficult or impossible to solve because of
incomplete, contradictory, and changing requirements that are often difficult to recognize…” and
often harbor unintended consequences; 2.) both the experts and people in general feel a loss
of control; and 3.) people are more becoming more aware that reason and rational problem
solving methodologies, as they have traditionally been applied, are insufficient. (Rittel, Horst,
and Webber, Melvin, “Dilemmas in a General Theory of Planning,” 4 Policy Sciences 155-169,
1973; Wikepedia Overview; Kahneman, Daniel and Tversky, Amos, Choices, Values and
Frames, 2000, The scarcity of resources, climate change, and faltering economies, are just
some of the most apparent macro issues of this kind, but there are aspects of wicked problems
in many community, healthcare and interpersonal disputes as well. (Tenner, Edward, Why
Things Bite Back:Technology and the Revenge of Unintended Consequences, 1996, Taleb,
Nassim N., Fooled By Randomness: The Hidden Role of Chance in Life and in the Markets,
2005; Berwick, Donald, Escape Fire: Designs For the Future of Healthcare, 2004) As with all
issues, and especially complex ones, the level of stridency is made more intense by
communication breakdowns. While the internet has dramatically increased the technology of
communication, it has also become a source of miscommunication by the reductionist
oversimplification and fragmentation of multi-variate issues. Before the advent of Chaos
Theory, “Fuzzy Logic,” and Quantum Theory, as a culture we had allowed ourselves to believe
that any issue could be solved by science and technology; there was comfort in the notion that
the principles of certainty and predictably were intact. Since then, we have been collectively
shaken by the realization that there are often multiple possibilities in outcome over which
humans have limited control and about which there is frequently little agreement about how to
proceed. In short, while Issac Newton offered precise formulas for the calculation of predictable
and certain outcomes of observable events, like the rate of fall of an apple from a tree, the
behavior of subatomic particles refuse to follow those laws of nature, once thought to be
ironclad and certain. The complex issues of the present day tend to follow the more chaotic
patterns of subatomic particles rather than falling apples. There is no precise formula available
by which to solve wicked problems and, importantly, we cannot expect to necessarily think, or
reason, our way out of such complex difficulties.

This social, political, and economic environment requires a different approach to negotiation
and mediation. While negotiative processes are well suited to manage the complexity of these
issues and allow for a more creative, flexible, and direct monitoring of decision making, the
approach, strategies and techniques of negotiation and mediation will also have to shift and
adapting to this new environment. The rationalist model, while still useful, is no longer sufficient
for three reasons:

 First, practitioners, and people in general, are slowly becoming aware that most conflicts
are systemic in nature and that any potential approach to management must also be
systemic. Few issues can be managed simply as just a legal, business, political, or
personal matter. They must be addressed holistically.
  Second, most disputes involve multiple parties with widely divergent interests. Rarely will
there be an elegant solution that everyone accepts.
 Third, studies in neuroscience and cognitive psychology have made clear that few
human beings are the “rational actors” they have been presumed to be. They are, in fact,
“predictably irrational” in their decision-making and judgment. As well, the functioning of
the human brain is messy with a bias toward lazy and habitual thinking that is difficult to
overcome.

Neuroscientists, of course, did not study conflict per se, only how the human brain appeared to
function when presented with emotional circumstances such as the stress of conflict. For their
part, conflict management practitioners have only begun to apply some of the understandings
resulting from neurobiology and cognitive psychology to practice in the last 5 years. The
predilection for the rationalist approach remains strong and there continues to be a resistance to
accepting the inextricable connection and integration of the cognitive and subjective functioning
of the human brain. Emotionally-based processes have always been suspect in a Western
culture dedicated to reason and rational thinking and such studies traditionally been relegated to
the province of moral philosophy, which would become the discipline of psychology only toward
the end of the 19th Century.

In the early 1970’s, however, with the technological development of actual brain imaging
techniques, such as Magnetic Resonance Imaging (MRI), and later the Function Magnetic
Resonance Imaging, which records the brain in operation, neuroscientists were able to produce
high quality images of localized brain activity in direct response to stimuli. Their ability to study
not just the functioning of the human brain in general, but the emotional processes in particular,
was enhanced significantly. Prior to this time, as Joseph LeDoux, a noted neuroscientist
observed, emotions were viewed as “… just too complex to track down in the brain.” Up until
then, the focus of inquiry had been essentially limited to the cognitive processes. This bought
about the admittedly late “recognition that the mind is more than cognition…,” and the
realization that subjective states of awareness also had to be, and could be, objectively studied
if cognition is to be properly understood. (LeDoux, J., The Emotional Brain,1996; Purves, et al,
Principles of Cognitive Neuroscience, 2008)

One such neuroscientist of note is Antonio Damasio. From his considerable research, he
concluded that there is no such thing as the “cool headed reasoner” of myth and lore. The
human brain is not neatly divided into different parts, one being the analytic and rational, and
the other being the creative, emotional, and intuitive. (Damasio, Antonio, Descartes’ Error:
Emotion, Reason, and the Human Brain, 1994) No decision is purely objective. There is always
an inextricable emotional component to the functioning of the human brain. There have been
strong suspicions of this close and continuous interplay of reason and emotion over the
centuries. In the 17th Century, although cast as rationalist philosopher, Baruch Spinoza,
challenged the Cartesian mind-body dualism that gave a higher order status to the human
rational mind over the affective bodily senses and many philosophers and psychologists have
since argued for a more holistic view. However, it has taken until effectively the present day for
studies in neuroscience to confirm those suspicions. (Damasio, Antonio, Looking For Spinoza:
Joy, Sorrow, and the Feeling Brain, 2003) This forces a re-thinking of the concept of rationality,
which can no longer be narrowly limited to assertions that are provable, measureable, and
objective. The definition of rational will need to be expanded to include irrational
thinking. Sometimes irrational acts are, in fact, appropriate and rational and being too rational
in certain circumstances can be irrational. This is nowhere more evident than in the practice
negotiation and mediation.
Complementing the neuro-scientific work, cognitive psychologists have challenged the rational
model of human judgment and decision-making. Daniel Kahneman, a Nobel Laureate in
Economics, and his principal collaborator, Amos Tversky, along with others since, have
demonstrated the numerous heuristic biases, or shorthand “rules of thumb,” people typically use
in their day-to-day decisions. Not just sometimes, but regularly, they are as likely to be as wrong
as they are right. Such judgments, in effect, are “predictably irrational.” No one escapes this
inbred condition of brain functioning, not even scientists, lawyers, doctors or mediators,
notwithstanding their professed claims and promise to be neutral, impartial and objective. Every
one of us operates with a selective and imperfect memory, tends to be unjustifiably
overconfident in our abilities and our truth of our beliefs, and tend to overlook our
misperceptions. This reliance on intuitive judgments, while easier, frequently causes people to
make systematic errors in judgment and prediction. (Kahneman, Daniel, Thinking Fast and
Slow, 2011)

While not directly addressing negotiative behavior in Thinking Fast and Slow, Kahneman offers
an especially useful and realistic frame from which to understand how negotiation and mediation
should be approached. Not only does it compel negotiators and mediators to reflect on their
own working assumptions, such as their presumption of neutrality, but it also provides an
important frame for understanding the decision making process of people in
conflict. Appreciating the ongoing interplay and tension in decision-making between peoples’
intuitive, shorthand ways of thinking and their more ‘effortful’ and analytical thinking frames,
allows for the emergence of a new Post Modern approach to negotiative behavior.
Kahneman’s Thinking Fast and Slow does not presume that being aware of the built-in
“predictable irrationality” that is part of human decision making can be remedied, altered and so
as to make people more rational, but that being mindful that is is a significant part of our
thinking can be anticipated, sometimes countered, or even used to advantage, and possibly
somewhat neutralized. At the very least, Kahneman offers an alternative platform from which to
engage conflict that does not rely entirely on the use of reason, logic and persuasion and the
presumptions of Rational Decision Making Theory.

Most people in a dispute, not wanting to lose face and often feeling threatened are prone to
spin the story to their advantage, or even outright lie. They will posture theatrically, making
demands and issuing ultimatums that border on irrational. Such games are commonly
discounted and dismissed as irrelevant. They may, however, have some value and, from an
evolutionary perspective, some relevant purpose. Entertaining that behavior, in a managed
way, may allow a workable agreement to emerge more quickly. Being too quick to move to
what appears to be a logical and workable agreement, based on what appears rational and
reasonable, may be counter-productive. Given that the primary purpose of negotiation is to
reach an agreement, being too focused on being rational would be irrational. Reason and
logic, although they are the most common techniques suggested and taught to counter
“irrational” thinking, are some of the least effective. Most experienced mediators and
negotiators have concocted their own secret tricks that use forms of “crazy wisdom.” Through
the centuries, many non-traditional, counter-intuitive, and sometimes non-rational tactics for
nudging people towards agreement when reason fails, have been developed. Such tactics and
strategies should not be lost because they do not neatly fit into an approved style or model of
practice.

Much of the structuring, and many of the strategies and techniques of the rationalist approach to
negotiation and mediation are slowly being reconsidered in light of neuroscience and cognitive
psychology. For example, following the familiar legal structure, many mediations begin with
each party presenting an opening statements of their position. While this follows the rationalist
approach, this model encourages posturing and tends to solidify the parties in their positions.
The result is a “rational” tactic that leads away from agreement and is, therefore, effectively
irrational. The post-modern approach offers a more calculated technique for managing the
discussion that does not force the parties into a pre-set rigid structure.

Likewise, the paradoxical injunction is a non-linear communication device. Instead of directly

challenging a party’s logic for a position or action, a negotiator or mediator might authentically
agree with their decision and encourage them to proceed to do what they say they want to do.
This can often release the party from the need to take the action they claim is necessary. For
example, suggesting to someone resistant to negotiation that they may well be right and that
this process may not be well suited for them to resolve a dispute can allow them to mediate. By
contrast, rationally explaining the benefits of the process often elicits a rebuttal and serves to
reinforce their resistance.

Traditionally, in the rationalist frame, impasse is not good and to be avoided. Turning that
working assumption on it’s head, a rationally irrational mediator approaches, and sometimes
might even encourage impasse; an impasse can offer a creative opportunity for problem
solving. Neuroscience suggests that after the frustration of an impasse, people tend to relax
allowing other options to come to mind. (Benjamin, R.D., “The Joy of Impasse: The
Neuroscience of Insight and Creative Problem Solving,” 2009)

Conclusion

The understanding of negotiative behavior is being stymied by a lack of awareness of the

evolution of those behaviors and their natural history. Assuming the practice of negotiation has
effectively begun in the last 50 years seriously compromises the dynamic development of
negotiation that has preceded practice in the present day, and continues to directly influence
that practice. The way people negotiate and mediate conflicts reflects strategies and techniques
that have been cultivated over many centuries. Too often, past tactics are simply dismissed as
primitive and outmoded, and yet they continue to be displayed with regularity. Their ongoing use
suggests a continued evolutionary purpose and relevance. Few strategies and techniques have
gone extinct just because a new practice style or approach has been announced.

There is no way to be proficient as a practitioner without being mindful of the sweep of history
and past negotiation strategies and techniques. Being aware of how negotiation approaches
and strategies might plausibly be associated with certain historical periods, social, political,
economic and scientific developments, conveys the dynamism of an evolutionary process that
impacts present day practice. The study of the natural history confirms that negotiation will
almost always include an element of survival and the fear and ambivalence of being played for a
fool. It is not an easy process to engage. Negotiation, done well, also requires strategic
thinking, a measure of deception and the necessity of game playing.

And, finally, there is no minimizing the importance of carefully assessment and analysis of the
conflict terrain and methodical consideration of available options. Future negotiators and
mediators will also be obligated to learn how to anticipate and take into account their own and
other parties’ heuristic biases and “predictable irrationalities.” This emerging post modern
approach to negotiation has the potential to integrate the strengths of all of the previous
negotiative forms and approaches into a more systemic conceptual framework that is more
realistically suited to deal with the complexity of modern day conflicts.

Biography
Robert Benjamin, M.S.W., J.D., has been a practicing mediator since 1979, working in most
dispute contexts including: business/civil, family/divorce, employment, and health care. A
lawyer and social worker by training, he practiced law for over 25 years and now teaches and
presents professional negotiation, mediation, and conflict management seminars and training
courses nationally and internationally. He is a standing Adjunct Professor at the Straus Institute
for Conflict Resolution of the Pepperdine University School of Law, at Southern Methodist
University’s Program on Conflict Resolution and in several other schools and universities. He is
a past President of the Academy of Family Mediators, a Practitioner Member of the Association
for Conflict Resolution, and the American Bar Association’s Section on Dispute Resolution. He
is the author of numerous book contributions and articles, including “The Mediator As
Trickster,” “Guerilla Negotiation,” and “The Beauty of Conflict,” and is a Senior Editor and
regular columnist for Mediate.com.