Before you start What is a negotiator? What is a mediator? What is a fact-finder? When might professional dispute-resolution assistance be useful? When might negotiation or mediation not be appropriate? How do you find and select a negotiator, mediator, or fact-finder? Negotiation is part of everyday life. People negotiate at home, at work, within organizations, and throughout communities. Organizations may negotiate: Collaborative agreements Contracts Funding arrangements Workplace issues Service responsibilities Community-benefit agreements Regulatory or administrative disputes Other issues requiring agreement among people or institutions Many negotiations can be handled directly by the people involved. In other circumstances, assistance from a negotiator, mediator, fact-finder, attorney, or another dispute-resolution professional may be useful. The appropriate process depends on the issue, the relationship among the parties, the legal context, the power dynamics, the urgency of the situation, and what each party needs from the process. Before you start Understand the different processes Negotiation, mediation, neutral fact-finding, arbitration, facilitation, and other dispute-resolution processes are related but distinct. Negotiation Negotiation is a process in which parties communicate directly or through representatives to explore whether they can reach an agreement. A neutral third party is not required. Mediation Mediation involves a neutral third party who helps participants communicate, understand interests and options, and explore whether they can reach their own agreement. The mediator does not ordinarily impose the outcome. Neutral fact-finding Neutral fact-finding generally involves an independent person or team examining disputed factual questions and reporting findings. The authority of a fact-finder and the effect of the report depend on the law, agreement, court order, agency process, or other rules governing the matter. Arbitration Arbitration involves a neutral decision-maker who considers the dispute and issues a decision. Depending on the governing agreement or law, the decision may be binding or nonbinding. Do not assume every dispute should be settled through the same process Alternative dispute resolution can be useful, but it is not automatically preferable to litigation, administrative enforcement, formal investigation, or another legal process. The right process depends on the circumstances. Power does not have to be equal before negotiation can occur Parties frequently enter negotiation or mediation with unequal: Financial resources Organizational power Legal representation Technical expertise Access to information Political influence Ability to tolerate delay Unequal power does not automatically make negotiation impossible. It may, however, require safeguards such as: Independent legal advice Access to relevant documents Qualified interpretation Disability accommodations Additional preparation time Separate meetings where appropriate A carefully selected neutral Clear procedures for ending the process Do not treat threats of embarrassment, economic harm, personal consequences, or exposure of unrelated information as prerequisites for being taken seriously. Interest-based or principled negotiation One influential approach to negotiation is commonly associated with Roger Fisher and William Ury's Getting to Yes. Its concepts remain useful, but it is one framework among many approaches to negotiation and conflict resolution. Separate people from the problem Disagreement about an issue does not necessarily mean that the people involved are the problem. Focus on: The issue The relationship Communication problems Interests and needs Relevant evidence Possible solutions Avoid personal attacks or assumptions about another person's character or motives. Focus on interests, not only positions A position describes what someone says they want. An interest helps explain why that outcome matters. For example: Position: We need the program funded at $300,000. Interest: We need enough funding to serve the expected number of participants without reducing essential services. Understanding interests can create additional options that may not be visible when people focus only on stated demands. Generate options Avoid assuming that only one possible agreement can solve the problem. Consider alternatives involving: Timing Funding Responsibilities Monitoring Implementation Communication Evaluation Other relevant terms Use appropriate criteria Agreements may be easier to evaluate when participants use criteria that do not depend entirely on either party's preferences. Depending on the dispute, useful criteria may include: Current law or regulation Scientific evidence Professional standards Comparable agreements Market information Independent evaluations Community priorities Established organizational policy Not every disagreement has one completely objective answer. Values, priorities, uncertainty, and differing interpretations of evidence may remain relevant. What is a negotiator? A negotiator represents a party in a negotiation. Unlike a mediator, the negotiator is not expected to be neutral between the parties. A negotiator may be: A staff member An organizational leader A union representative An attorney A community representative A professional negotiator Another authorized representative What does a negotiator do? A negotiator may help: Clarify your goals Identify your underlying interests Determine which issues are negotiable Develop possible options Evaluate proposals Communicate with the other party Protect your legal or organizational interests Document a proposed agreement Establish the negotiator's authority Before negotiations begin, clarify whether the negotiator may: Make proposals Reject proposals Tentatively accept terms Sign an agreement Recommend an agreement subject to approval by someone else The other party should understand who has final authority to approve an agreement. When might a negotiator be useful? Consider professional or experienced representation when: The matter is legally or technically complex Significant money, services, rights, or organizational responsibilities are involved You lack experience negotiating the type of agreement involved The other party has professional representation The relationship has become highly adversarial Previous direct negotiations have stalled You need someone who can focus on negotiation while others manage the organization's regular work Having professional assistance is not an admission of weakness. What is a mediator? A mediator is an impartial third party who assists participants in communicating and exploring whether they can reach their own resolution. Mediation is based on party self-determination. The mediator facilitates the process but ordinarily does not decide the dispute or impose a settlement. What does impartiality mean? An impartial mediator should not favor one participant over another. Before mediation begins, potential conflicts of interest should be disclosed and addressed. What does self-determination mean? Participants make their own decisions about whether and on what terms to reach an agreement. In some legal systems or programs, people may be required to attend or attempt mediation. That does not necessarily mean they can be required to accept a settlement. The exact rules depend on the jurisdiction and process. What can a mediator do? Depending on the mediation model and applicable rules, a mediator may: Structure the discussion Help participants identify interests Clarify misunderstandings Help participants identify areas of agreement Help generate options Ask participants to consider the practical consequences of alternatives Meet separately with participants when appropriate Help participants describe proposed terms clearly A mediator is not the attorney for either participant merely because the mediator happens to be a lawyer. Participants who need individualized legal advice should consider obtaining independent counsel. Mediation may occur in several formats Mediation may occur: In person Virtually By telephone in some circumstances With everyone together Through separate sessions Through a combination of these methods Physical presence in the same room is not required in every mediation process. Confidentiality varies Do not promise that mediation is completely confidential without checking the rules that apply. Confidentiality may be governed by: State or federal law Court rules Agency rules Professional standards Agreements among the participants Exceptions may apply. Ask the mediator to explain confidentiality and its limits before the process begins. When might mediation help? Mediation may be useful when: Direct communication has broken down Participants continue to misunderstand one another Strong emotions are making discussion difficult Participants want to preserve or repair an ongoing relationship Negotiations have stalled Participants want more control over the outcome than a court or arbitrator would provide Multiple possible solutions exist Participants want a structured but flexible process When might mediation require additional safeguards or another process? Mediation is not automatically appropriate for every conflict. Additional safeguards or another process may be necessary when: There is violence or a credible threat of violence One participant is being coerced or intimidated A substantial power imbalance prevents meaningful participation A participant cannot safely communicate with the other party Important evidence may be destroyed An urgent court order or injunction may be needed A filing deadline is approaching A public investigation or precedent is important Criminal conduct or serious regulatory violations may require reporting or enforcement One party is participating only to delay accountability In such circumstances, seek qualified legal, safety, regulatory, or professional guidance as appropriate. Good faith in negotiation and mediation Negotiation is more likely to be productive when participants: Provide required information accurately Have genuine authority to negotiate Consider proposals seriously Do not use the process solely to delay Follow through on agreements However, do not assume that failed negotiation proves that another party acted in bad faith. Parties may simply disagree strongly about: Facts Law Risk Values Cost Acceptable remedies Do not rely on threats of unrelated harm It may be legitimate to explain realistic consequences of failing to reach an agreement, such as: Litigation Administrative proceedings Continued operating costs Delayed implementation Loss of an available agreement Other lawful alternatives Do not frame negotiation around causing personal pain, humiliation, harassment, unrelated reputational harm, or improper economic pressure. What is a fact-finder? A neutral fact-finder investigates disputed factual questions. Depending on the process, the fact-finder may: Review documents Interview participants or witnesses Examine records Consult technical experts Compare competing accounts Prepare findings Make recommendations when authorized The role should be defined before the investigation begins Clarify: What questions the fact-finder will examine Who selected or appointed the fact-finder What records the fact-finder may obtain Whether interviews are confidential Who receives the final report Whether findings will be public Whether recommendations are authorized Whether the findings are advisory, presumptive, or binding under the applicable process Do not assume that every fact-finder's report is nonbinding or that every judge or agency will adopt the findings. When might neutral fact-finding help? It may be useful when: Participants disagree about basic facts Technical evidence is disputed An organization needs an independent investigation A dispute cannot move forward until factual questions are clarified A court, agency, employer, labor-management process, or agreement provides for independent fact-finding Fact-finding is not the same as advocacy A neutral fact-finder should not be selected because you expect the person to prove your side correct. If you need someone to advocate for your position, use an appropriate representative or expert rather than describing that person as neutral. What about arbitration? Arbitration differs from mediation because an arbitrator decides the dispute rather than helping the participants reach their own resolution. Arbitration may be: Required by contract Voluntarily selected after a dispute arises Required by a particular statute or process Binding or nonbinding, depending on the governing rules Before agreeing to arbitration, understand: Who will select the arbitrator What rules apply What evidence may be presented What the process will cost Whether the decision is binding What rights of review or appeal exist When can you handle negotiation yourselves? Direct negotiation may be reasonable when: Participants can communicate safely The issues are reasonably understandable The stakes are manageable Participants have enough information to make decisions There is a reasonable chance of agreement The people negotiating understand what they are authorized to agree to Professional representation is not required Even then, legal or technical review may be appropriate before signing a final agreement. Why might you seek professional assistance? A negotiator may be useful when: You need an experienced representative The legal, technical, or financial issues are complex The other party has professional representation Previous negotiations have stalled You need help evaluating proposals or protecting important interests A mediator may be useful when: Communication has broken down Participants want to retain control of the outcome Strong emotions or mistrust interfere with direct negotiation Negotiations have reached an impasse An ongoing relationship makes collaborative resolution valuable A court, agency, contract, or other process provides for mediation A fact-finder may be useful when: Participants fundamentally disagree about facts Technical or scientific questions require independent assessment An investigation must establish what occurred Clarification of facts may help negotiations continue When might negotiation or mediation not be enough? Another process may be needed when: Immediate legal protection is necessary A statute requires formal enforcement Serious misconduct requires independent investigation Public accountability is an important part of the remedy Discovery or compulsory access to evidence is needed A legal precedent must be established One participant cannot safely or meaningfully participate A participant repeatedly refuses to honor agreements A filing deadline or limitation period requires immediate legal action Do not delay obtaining legal advice merely because negotiation or mediation is being considered. How do you find a negotiator, mediator, or fact-finder? Current sources may include: Court-connected mediation or dispute-resolution programs Community mediation organizations State or local dispute-resolution programs Professional mediation or arbitration organizations Bar associations Universities or law-school dispute-resolution centers Labor-management mediation organizations Government programs appropriate to the dispute Referrals from attorneys or other professionals familiar with the field Federal Mediation and Conciliation Service In the United States, the Federal Mediation and Conciliation Service provides mediation and related conflict-resolution services primarily in labor-management matters and also provides certain services to government entities. Check its current services and eligibility requirements before relying on it for a particular dispute. Use current directories Search current court, government, professional-association, and provider directories rather than relying on printed telephone directories or old lists of providers. How do you select the right professional? Do not select someone solely because another person says the individual is “good.” Consider interviewing potential professionals about: Training Experience Relevant subject-matter knowledge Approach or mediation style Professional standards Conflicts of interest Confidentiality practices Accessibility Language capacity Fees Availability Virtual or in-person options Ask specifically about competence Experience in one type of mediation or negotiation does not necessarily qualify someone for every dispute. Depending on the matter, useful experience may involve: Labor relations Community conflict Environmental issues Employment Housing Organizational governance Public policy Family matters Another specialized area Check conflicts of interest For a mediator or neutral fact-finder, ask whether the person has: Worked for either participant Represented a related organization A financial interest in the matter A personal relationship that could reasonably raise questions about impartiality Another conflict that should be disclosed For a neutral, involve the other participants in selection Mediators and neutral fact-finders are more likely to be trusted when participants understand and accept the selection process. Discuss: Who will serve How the person will be selected What the person's role will be What authority the person will have What rules will govern the process Agree on the process before beginning When possible, clarify: The issues to be addressed Participants Decision-making authority Schedule Location or virtual platform Accessibility and interpretation Confidentiality Document sharing Fees Whether lawyers or other advisors will participate How the process may end How any agreement will be documented How do you propose mediation or another dispute-resolution process? Explain why you believe the process may help. Potential benefits may include: More direct communication Greater control over possible solutions Flexible scheduling Opportunity to preserve an ongoing relationship Ability to explore creative solutions Potential savings in time or cost Do not guarantee that mediation will be faster, cheaper, or more successful than litigation. Complex disputes can still involve substantial time and expense. Avoid a “carrot and stick” approach You may explain lawful alternatives if agreement is not reached. For example: If we cannot resolve the matter through negotiation, the contract provides for arbitration. or: The filing deadline is approaching, so we may need to preserve our legal rights while discussions continue. That is different from threatening unrelated humiliation, personal harm, or retaliation in order to force participation. Court-ordered or agency-connected mediation Courts, agencies, collective-bargaining agreements, contracts, or statutes may require or encourage participation in mediation or another dispute-resolution process. The exact authority varies by jurisdiction. A requirement to participate does not necessarily authorize a mediator to force participants to settle. Check the applicable court rules, statutes, contract provisions, or agency procedures. Formal complaints, investigations, and enforcement When the underlying concern involves possible: Discrimination Harassment Fraud Safety violations Environmental violations Misuse of public funds Other legal or regulatory violations a complaint, investigation, or enforcement process may be necessary whether or not mediation is also available. Do not assume that a negotiated private agreement is always an adequate substitute for formal accountability. Document agreements carefully If participants reach an agreement, identify: Who is responsible for each action What must be done Deadlines Funding responsibilities Reporting requirements Monitoring procedures How future disagreements will be handled For important agreements, consider qualified legal review before signing. Follow up Resolution of a dispute does not necessarily end the work. Periodically determine: Whether commitments were completed Whether the agreement is working Whether circumstances have changed Whether clarification or modification is needed Whether new disagreements have arisen The goal is not to maintain a negotiation process indefinitely. It is to establish a workable resolution and an appropriate method for addressing future issues. In Summary Negotiators, mediators, and neutral fact-finders perform different roles. A negotiator represents a party and advocates for that party's interests. A mediator serves as an impartial facilitator who helps participants communicate and explore whether they can reach their own agreement. A neutral fact-finder investigates disputed factual questions and reports findings according to the authority given by the applicable process. An arbitrator differs from a mediator because an arbitrator makes a decision rather than helping the participants create their own settlement. Interest-based negotiation can help participants distinguish positions from underlying interests, generate options, separate personal conflict from substantive problems, and use appropriate external criteria. Dispute-resolution professionals do not require the parties to have equal power before they can become involved, but substantial power imbalances may require safeguards. Mediation should respect self-determination, impartiality, informed participation, and appropriate confidentiality. A court or other authority may sometimes require participation in a mediation process, but settlement generally depends on agreement by the participants under the rules governing that process. Alternative dispute resolution is useful in many circumstances, but it is not automatically preferable to litigation, enforcement, investigation, or other formal processes. Urgent legal rights, safety concerns, serious misconduct, filing deadlines, public accountability, and the need for compulsory evidence may make another process necessary. When selecting a professional, examine training, experience, competence, conflicts of interest, professional standards, accessibility, confidentiality practices, fees, and the person's role in the process. Use current courts, government programs, professional associations, community mediation services, and other reliable directories rather than outdated provider lists. For mediators and other neutrals, involve the participants in selecting the person and defining the process whenever possible. Do not try to obtain participation through threats of personal, reputational, or unrelated economic harm. Explain instead why the process may be useful and what lawful alternatives exist if agreement cannot be reached. Finally, the purpose of dispute resolution is not simply to pressure another party into dealing with you or to avoid court at all costs. It is to choose a process appropriate to the dispute, protect the rights and interests of the people involved, clarify facts and interests, and seek a resolution that can be understood, implemented, and sustained. Resources Online Resources The ABCs of Negotiation is an advocate’s guide to negotiating with providers to improve access to healthcare services. The American Arbitration Association. The oldest and largest of ADR organizations. Membership, training, etc. AAA maintains over 11,000 mediators, arbitrators, and fact-finders, who engage in over 200,000 cases a year, mostly with larger entities. The Association of Family and Conciliation Courts. An international, interdisciplinary membership organization for professionals focused on family conflict resolution and the best interests of the child. The Association for Conflict Resolution, a merger of the Academy of Family Mediators, CRENet (Conflict Resolution Education Network), and SPIDR (the Society of Professionals in Dispute Resolution). One of the major ADR professional associations, with listings of professionals by state and city. Advocacy Skills: Tips for Selecting a Good Mediator provides a variety of criteria that need to be taken into consideration when selecting a mediator for an advocacy campaign. The Advocate's Mediation Checklist is an excellent resource with detailed information on mediation and advocacy. The national website of CASA (Court Appointed Special Advocates), a volunteer program of court-appointed, trained fact-finders representing the interests of neglected and abused children. The Climate Change Knowledge Network: A survival guide for developing country climate negotiators. Although the material here is specific to climate change, much of it can be relevant to local advocacy groups and coalitions as well, especially if they're negotiating with forces much more powerful than themselves. Family Mediation Canada. A Canadian professional association of family mediators - interdisciplinary, focused on the best interests of the child. Georgia Alternative Dispute Resolution links to most other state ADR programs. The Mediation and Conflict Resolution Office (MACRO) of the state of Maryland. Mediate.com. Links to information on selecting a mediator from one of the largest ADR-themed sites on the Internet. Also on this site: The Electronic Negotiator, an article on negotiating by e-mail from Harvard Business Review, Jan.-Feb., 2000, pp.16-17. Te National Arbitration Forum. A provider of fee-based mediation in commercial, financial, and business situations. All mediators have at least 15 years of experience, and are qualified under any local laws or rules. The Negotiator Magazine. Ten negotiating tips from Ed Brodow. Negotiator Pro. Negotiation games and software. One game downloadable free; others from $12.95. The Program on Negotiation at Harvard Law School. The home of Getting to Yes. The US Federal Mediation and Conciliation Service. FMCS provides mediation, conciliation, and voluntary arbitration in labor-management disputes; works with government agencies and public stakeholders to facilitate the formulation of public policy; runs programs in technology-assisted dispute resolution and youth violence prevention; and trains organizations and government agencies in ADR and other areas. The website of Stephen Marsh, an attorney who teaches and practices mediation. Information on mediation, links, other ADR material. Print Resources Beer, J., Packard, C., & Stief, C. (2012). The Mediator’s Handbook: Revised and Expanded Fourth Edition. New Society Publishers. This book provides a time-tested, adaptable model for helping people deal with conflict. Beer. J., & Stief. E. (1997). The Mediator's Handbook. (3rd edition) Gabriola Island, BC, Canada: New Society Publishers. Cohen, H. (1982). You Can Negotiate Anything: The World’s Best Negotiator Tells You How to Get What You Want. Bantam. This book provides information on how to successfully negotiate. Fisher, R., & Sharp, A. (1998). Getting it Done: How to Lead When You’re Not in Charge. Harper Business. Fisher and Sharp provide an explanation as to why collaboration with others is difficult, and they suggest a new strategy to working with others. Fisher, R., Ury, W., & Patton. B. (1991). Getting to Yes. (2nd edition) New York, NY: Penguin. Meredith, C., & Dunham. C. (1999). Real Clout. Boston: The Access Project. Spence, G. (1996). How to Argue & Win Every Time: At Home, At Work, In Court, Everywhere, Every Day. St. Martin’s Griffin. Spence offers advice on optimizing oral presentation of an argument through use of story-telling and visual imagery.
