Section 15. Seeking a Negotiator, Mediator, or Fact-Finder

• Before you start...

• What is a negotiator?

• What is a mediator?

• What is a fact-finder?

• Why would you need a negotiator, mediator, or fact-finder?

• How do you go about seeking (and finding) a negotiator, mediator, or fact-finder?

When do you need a dispute resolution professional to help you resolve a conflict, and when can you do it on your own? Most Tool Box users probably have some dispute resolution skills, and some may be particularly talented in that area. They may, in most circumstances, be able to resolve conflicts, negotiate agreements, and otherwise deal with disputes on their own.

 

Even for those who have these skills, however, there are times when a neutral - or not-so-neutral - professional can be helpful. When the parties distrust each other, for instance, or when emotions can keep one or the other from focusing on the issue, the objective view of a dispute resolution professional is often helpful. Please see the segment below titled "Why would you seek a negotiator, mediator, or fact-finder?" for more on this topic.

Before you start...

Some background information that relates to all of what follows:

• Although only one of the three positions in the title of this section is called a negotiator, all three pertain to negotiations. According to the American Arbitration Association (AAA), the best-known and largest of American alternative dispute resolution organizations, negotiation is "a process in which disputants communicate their differences to one another through conference, discussion, and compromise in an effort to resolve them." In other words, it's a process of give and take, aiming at an agreement satisfactory to both parties.

• To employ a negotiator, mediator, or fact-finder implies that you've reached a position of strength that's equal, or at least close to equal, to that of the other party. That may mean you have the level of organization and the number of supporters to affect his business, election, or freedom to act. It may mean you're working out the specifics of a collaboration or other deal that you both want. It may mean that you have convinced him to deal with you because he knows you're in the right, and that it would be in his interest as well as yours. It may mean you have the goods on him - the evidence that he's been doing something shady, embarrassing, or otherwise that he doesn't want exposed. Or it may mean that a judge, a regulatory agency, or some other authority has ordered him or both of you to negotiate. In any case, it's usually unlikely that the other party will agree to any kind of negotiation until he has conceded your peer status, and knows he has to deal with you.
• Negotiation, mediation, and fact-finding are all types of alternative dispute resolution, or ADR, terms we'll use throughout this section. Alternative dispute resolution refers to these and other techniques that provide alternatives to legal action, which, in the opinion of the Community Tool Box, should generally be thought of as a last resort. (In short, it's generally expensive, time-consuming, risky, and nasty.) There are, however, times when it's necessary.
• Getting to Yes. Finally, a short book review. The bible of alternative dispute resolution is Getting to Yes, by Roger Fisher and William Ury. If you have any expectation of ever entering into any kind of negotiation (including with your family over which TV channel to turn to), if you are consulting this section for any reason other than idle interest, read Getting to Yes. It's the touchstone for ADR professionals all over the planet, including most top-level diplomats, and has sold over 25 million copies. This small book has changed the whole concept of dispute resolution over the past 20 years, with its combination of insight into the negotiation process, common sense, and principle. Its guiding principles pervade this section, and, indeed, all of the Community Tool Box. (For more information, you can visit the Harvard Law School Project on Negotiation.)

Principled negotiation

 

Fisher and Ury's book and techniques are so influential because they present clear and better alternatives to traditional methods of dispute resolution. Some negotiators assume a bulldog style. Seeing a negotiation as a battle of "sides," where the two (or more) are at odds, and anything one gains is at the cost of the other, they bully, threaten, and refuse to compromise on their positions. Others, trying to be reasonable and accommodating, may give away too much too easily. Neither of these styles does much to arrive at fair agreements that satisfy all parties. Getting to Yes describes what its authors believe is a better way.

 

Principled negotiation is what Fisher and Ury call the method they describe in Getting to Yes. It is meant to be a way to get the best possible outcome for yourself while being fair and reasonable to the other party. Fisher and Ury's assumption is that the closer you can come to meeting the other party's needs as well as your own, the better the agreement you'll end up with, and the more carefully both sides will adhere to it.

 

Principled negotiation concerns itself with four aspects of the negotiation process: people, interests, options, and criteria. We'll briefly examine each, and see how it fits into the overall scheme.

• People. The key concept here is "Separate the problem from the people." All negotiations, even friendly ones, start with a problem: How can the differing needs of two or more parties be reconciled in an agreement that will work well for everyone? All too often, negotiators see the people involved as the problem. "He's blocking me from getting what I want." "She refuses to be reasonable, even when I offer to compromise." "Their team is rude, and treats us with disrespect."

Fisher and Ury don't advise focusing solely on the problem, or ignoring the problem and trying to manipulate the people. Rather, they see it as a matter of separating the two and paying attention to both. Use what you understand about other parties as people - who they are, and what they need - to get them to work with you on solving the problem.

•  Interests. The catchphrase for this element of negotiation is "Focus on interests, not positions." The positions of the parties are the specifics of what they demand or aim for: "I won't take a penny less than $300.00." The interests of the parties are the reasons they take those positions: "I need $300.00 to pay the rent by Thursday." If you understand and respond both to your own interests and those of the other party, positions become more flexible, and you can negotiate an agreement that serves everyone's interests. (You can often determine interests by asking "Why?" when parties state their positions.
• Options. The idea here is not to get stuck in a particular position, or in seeing a single outcome as the only possibility. Continue to generate options throughout the negotiation, and encourage the other side to do the same. That way, you're much more likely to come up with something that meets everyone's needs.
• Criteria. Insist that the result be based on some objective standard. If you're involved in a dispute, how do you decide on a fair resolution? Fisher and Ury's answer is to look at the research, at what others are doing in similar situations, at standards developed by third parties, etc. to find an objective criterion on which to base your agreement.

What do other communities pay for the same service? What level of a particular substance in drinking water do scientists agree is safe? What do similar businesses in similar communities pay in taxes? The answers to these kinds of questions yield the kinds of objective criteria upon which you can base an agreement. Fisher and Ury's conception grew out of their own and others' varied experiences in high-stakes negotiation (major coal industry labor/management disputes, international diplomacy, etc.) Its effectiveness has been borne out in the experiences of professionals over the years since the publication of Getting to Yes, to the point where some variant of principled negotiation is now the preferred method for a great majority of professional negotiators.

What is a negotiator?

Most negotiations in a community are on a smaller scale. Neighborhood disputes, landlord-tenant issues, who gets ice time when at the skating rink - these all need negotiation, but it's usually carried out by the parties themselves or by community volunteers. Professional negotiators are generally sought where the stakes are high, at least one of the parties is large or politically or economically powerful, and the negotiations promise to be difficult and complex.

When is a negotiator needed?

Negotiators may be needed in a variety of situations. In addition to those beyond the scope of most Tool Box users - international agreements and disputes, for instance - there are a number of situations in which you may find yourself where a negotiator would be useful in either resolving a dispute or drafting an agreement:

• Interactions between and among organizations, businesses, institutions, etc. These may include mergers, collaborations, sponsorship agreements, capital support, etc.
• Legal issues. Settlement of potential lawsuits, insurance claims, small claims, etc.
• Labor/management negotiations. These may involve formal contract issues (salaries, working conditions), or may be attempts to resolve grievances or other workplace disputes. (These often take place in the public - among communities and school employees, police, and firefighters, for instance - as well as in the private sector.)
• Divorce and child custody. Who gets the house? Visitation rights for the dog? What does joint custody consist of?
• Estate settlements. Where there's no will, where a will is unclear, or where a will is contested, the heirs usually end up negotiating how the estate will be divided.
• Landlord/tenant disputes over rent, behavior, the condition of the apartment.
• Very large private purchases. When a multi-million-dollar painting or piece of real estate is at stake, negotiations on price may be relevant. Although most Tool Box users may never be involved directly in such a purchase, non-profits may be indirectly involved if their donors buy or sell an artwork, say, with an eye toward endowment.
• Any negotiation to resolve a conflict or gain agreement among organizations, communities, states, and nations. Whether it's a matter of community advocates negotiating with town officials over cleaning up a park, activists negotiating with a government agency to stop illegal practices in an industry it oversees, communities negotiating with potential businesses about taxes and community responsibilities, or watchdog organizations negotiating with the federal government over election fraud, negotiators are needed, and - if they do their jobs well - can turn a potentially deadlocked situation into an arrangement that makes everyone reasonably happy.

What is a mediator?

The website of Stephen Marsh, a lawyer who practices and teaches mediation, features these five elements that define mediation as a practice:

• An impartial, third-party facilitator.
• A third party who protects the integrity of the proceeding: confidentiality, the fact that parties maintain control over arriving at agreement, etc.
• The good faith of the parties: their willingness to seek solutions, rather than abuse or take advantage of the other party, or avoid responsibility.
• The physical presence of the parties (although not necessarily in the same room).
•  An appropriate site or venue that's comfortable and safe for both parties.

• Each party defines what it actually wants out of the negotiation - its real interests, in other words.
• Each party understands the positions and needs of the other.
• Each party operates in good faith.

"Good faith" is an important concept in any type of negotiation. If one party simply doesn't care about the truth, about being honest in its offers, or about carrying out its part of an agreement, there is little point in negotiating at all. Even if there's bad feeling or outright hatred between the parties, if they're willing to negotiate fairly and to follow through on whatever they agree to, then there's a good chance for a final result that is acceptable to all. But if one is negotiating to buy time, or to satisfy some authority, and has no intent to abide by the result of the negotiation - or no intent to reach a result - then all might as well go directly to their lawyers.

 

Fisher and Ury suggest several methods for getting around the other party's bad faith, but if they're truly unwilling to play, your options are limited. This is particularly true if that party believes it holds all the cards. If you or the authorities have nothing credible to threaten it with - something that will cause it economic, public relations, personal, or legal pain - it will probably see no reason to negotiate in good faith.

• The parties come up with their own solution to the problem.

Mediators, like negotiators, might come from a variety of backgrounds. Some of the most common:

• Lawyers, especially in matters of divorce, child custody, and other family law.
• Counselors, psychotherapists, and psychologists, particularly in parent-child and similar disputes.
• Trained community volunteers, who often mediate small claims cases, landlord-tenant disputes, and other issues that arise in community mediation.
• Labor-management specialists.
• Trained mediators from specific backgrounds who mediate only in situations related to those backgrounds. A police department may have an internal mediator with a law-enforcement background, for instance, or a corporation's human resource department may employ a mediator with experience working in a corporate environment.

What is a fact-finder?

• A fact-finder may, as in the AAA definition above, be asked to come to some determination in a negotiation in which the participants have agreed that they are unable to agree.
• Fact-finding may be used in an internal investigation of irregularity or illegality. If an organization is unable to account for funds, for instance, or is accused (or accuses itself) of discrimination, it may either appoint an internal fact-finder or hire one from outside to determine the details of the issue and recommend corrective action.
• A fact-finder may be trying to determine which party to a dispute (if either) is representing the facts accurately. That information may, in itself, resolve the issue. If an environmental group claims that a housing development will foul the town's drinking water and the developer claims the opposite, the truth - if it can be discovered - will obviously affect whether the development can be built or not.
• The facts themselves may not be at issue, but the best possible solution to the situation may. A fact-finder, by examining comparable situations, consulting with experts, and other means, might be able to present some objective criteria for a possible resolution.
• Often, the real question is what should happen next. A common use of fact-finding is to determine whether a lawsuit or potential lawsuit has the grounds to be heard. If the fact-finder determines that it does, the judge will usually accept her recommendation.

A particularly effective use of this type of fact-finding is in the use of CASAs (Court-Appointed Special Advocates). The hundreds of local CASA programs use trained community volunteers as advocates for the best interests of abused and neglected children. Much of their work consists of fact-finding, both to determine the reality of the children's situations and histories, and to find and recommend to Family Court appropriate placements and services for children whose needs are often monumental. CASA volunteers work with their charges at least until the children are permanently placed (back with their families, in long-term foster care, or in adoptive homes) and receiving the necessary services.

The fact-finder's role also sets her apart from an arbitrator. Arbitration is similar to fact-finding, except that when parties submit a dispute to an arbitrator, it is with the understanding that the arbitrator will impose a solution. His decision is binding, and the parties are usually legally obligated to accept it. Salary disputes in professional baseball are commonly arbitrated, for instance, with the arbitrator deciding between the player's demands and the team's offer, based on the player's performance, promises made, and other factors.

Why would you seek a negotiator, mediator, or fact-finder?

In many instances, you'll be able to do your own negotiation without a problem. Why, then, would you look for a professional to help you? The answer lies in those instances when your own efforts wouldn't be adequate.

 

How do you know when you're faced with a negotiation you can tackle on your own? There's no simple formula to tell you this, but some factors to consider include:

• You have a generally decent relationship with the other party.
• You're negotiating a mutually beneficial arrangement.
• You're not far from agreement in an adversarial negotiation.
• The stakes are small, and would hardly justify hiring a professional.
• The circumstances are such that you're expected to do your own negotiation.
• You understand principled negotiation. (That doesn't necessarily mean you've read Getting to Yes, although that wouldn't hurt. The ideas in that book, after all, were developed from the experiences of the authors and others who learned their skills through time and experience, as you may have.)
• You, or others in your organization, have experience in conducting negotiations, and reasonable principled negotiation skills.

In addition to these and similar issues, you also have to consider the time available to reach a conclusion, your resources, your history with (and the reputation of) the other party, and the skills you and others in your organization can draw on.

There are a number of reasons why you might decide to seek a professional:

• You need a negotiator because you don't think you have the skills to negotiate for yourself. You may be afraid the other party will take advantage of you. Or you may know that you don't have good ADR skills, and want to be sure that the process adheres to the precepts of principled negotiation.
• You need a negotiator to protect your interests. You may not trust the other party (or vice-versa), and may feel it lacks good faith. Your interests may be at odds, either because of a conflict of values, or because one or the other of you assumes the other is doing or planning to do something that will prove harmful. Your positions may be so far apart that you feel it's impossible to bring them closer together without a negotiator who knows what she's doing.
• You need a negotiator because the other side has one. You feel your interests will be overmatched unless you have a professional negotiator also.
• You need a negotiator because you've already tried to negotiate the issue yourself and found it too difficult. You believe there can be a solution, but you don't think you can reach it.

Mediators

• You need a mediator because you want to devise your own agreement, but you don't trust the other party. Mediation will allow you to negotiate with the facilitation of someone who's impartial and who can help to assure that no one is misunderstood or overpowered.
• You need a mediator because you specifically want to avoid an adversary negotiation. Rather than risking a confrontation that could turn nasty, you'd prefer to concentrate on reaching the best agreement possible.
• You need a mediator because you don't feel the other party (or you) can negotiate fairly face to face. Either emotions are running too high, or there's too much bad feeling to guarantee a reasonable negotiation without intervention.
• You need a mediator because your negotiations are stalled, and you don't know where to go next. If negotiation has reached a brick wall, a mediator can help break it down.
• You need a mediator because the other party has requested mediation.

• You need a fact-finder to determine the realities of the situation, because you and the other party disagree on the facts. In a situation where you're negotiating an agreement, a contract, or a settlement, you may disagree with the other party on the facts that are the basis for the negotiation, or on other crucial information. In that circumstance, employing a fact-finder might be an appropriate way to resolve the issue.
• You need a fact-finder because you believe the other party isn't forthcoming about a crucial part of a negotiation or a piece of information. This is a difficult situation, because if you're right, the other party obviously isn't going to want to agree to use a fact-finder. It may, in fact, take considerable negotiating skill to get this to happen.

How do you seek a negotiator, mediator, or fact-finder?

What kind of seeking are we talking about?

• The first is the simplest. You can seek (i.e., try to find) a negotiator, mediator, or fact-finder - either an outside professional or someone with professional skills within your own sphere - to help you resolve a dispute or come to a negotiated agreement.
• A second meaning of "seek" in this context refers to seeking to persuade the other party to agree to negotiation, mediation, or fact-finding. This involves making a case that the effort would be better than the alternatives (which might range from doing nothing to being the defendant in a lawsuit), or would be of positive benefit. Such benefits would include not only the possibility of a positive outcome, but the ability to control the process and the ultimate agreement.
• The final meaning involves seeking to have an authority recommend or order the appointment of someone to help resolve an issue that affects the public. You might try, for instance, to have a federal agency urge or mandate mediation to facilitate the settlement of a labor dispute that threatens to shut down public transportation in a city. In a somewhat different vein, if you have evidence that another party is doing something illegal or contrary to the public interest (threatening public health, discriminating, failing to provide appropriate services, etc.) you might try to persuade a regulatory agency to appoint a fact-finder to investigate the situation.

Two important points here:

 

1) While a regulatory agency or other authority might order or recommend ADR at any time, a judge cannot do so until after a lawsuit has been filed. Judges have no jurisdiction until legal action has been taken. You won't have to file your own lawsuit, however, if the judge already has authority in the situation because of a previous legal action - if the other party is violating a judge's order that was handed down previously, for instance.

 

2) Mediation can only occur with the consent of both parties. A judge or other official may order two parties to attempt mediation, but if one or both don't buy into the process, it will probably be unsuccessful. Mediation only works if all parties to it cooperate. A fact-finder, however, could be imposed by a judge, agency, or internal authority if a situation seems serious enough, and the fact-finder's recommendations could be used to settle the dispute. In the case of a judge's order, the fact-finder is almost always a lawyer, and the issue at stake is almost always whether there are grounds for legal action.

We'll look at each of these types of seeking separately.

Seeking a negotiator, mediator, or fact-finder to help you resolve a dispute or come to a negotiated agreement

• Let your fingers do the walking - check the Yellow Pages. Many mediators and mediation programs, particularly, are listed in the phone book. Professional negotiators, at least in some fields, may be in the phone book also.
• Look on the Internet. A large number of ADR practitioners maintain websites to advertise their services. In addition, there are many websites that provide lists of ADR providers, some with qualifications, style of working, and other information. (See Resources below for some of these web sites, and how to find others.)
• Consult the Federal Mediation and Conciliation Service. A US government agency, originally limited to labor-management negotiation issues, it has become involved in other areas, such as youth violence prevention and ADR through the use of technology. It provides services and conducts training in ADR and related areas.
• Check with your state alternative dispute resolution agency. Most states have such an agency that offers alternative dispute resolution services and training within and among public entities in the state, and sometimes in other circumstances as well. The Georgia Office of Dispute Resolution website contains links to most other state programs at http://www.state.ga.us/gadr/more_adr_links.html.
• Ask the court system for a referral. In many states, courts at various levels use ADR as a means of resolving disputes cleanly and reducing caseloads. These courts keep lists of court-approved ADR professionals, usually with qualifications and contact information. These often include community mediation programs and others that charge relatively low or no fees. (Many states, and even counties or other smaller administrative areas, have websites for court-run ADR programs.)
• Look for local community mediation programs. In many areas there are publicly-funded or private mediation programs that handle neighborhood quarrels (barking dog complaints, children being picked on), small claims, family disputes, and other similar issues. These may be staffed by both professional and trained volunteer mediators, and usually provide services at an affordable cost or free.
• Check nearby universities. Many universities, usually in their law schools, support centers for research and practice in ADR. (The Harvard Law School Program on Negotiation, for example, was the home base of Roger Fisher and William Ury, authors of Getting to Yes.) Most such university centers offer ADR services for a fee, and may also keep lists of practitioners.
• Ask your local bar association. Most bar associations maintain lists of lawyers who practice various kinds of ADR, and a majority of lawyers consider negotiation a facet of their jobs.
• Contact the American Arbitration Association, which has hundreds of ADR professionals on call.
• Contact other professional associations, such as the Association for Conflict Resolution. They can offer advice and lists of their members, often with information on specialties, training, experience, etc.
• Ask individual professionals you know to refer you to appropriate ADR providers.
• Use word of mouth from friends, colleagues, or others in the community who've employed ADR. They can be an excellent source of information.

While principled negotiation, for instance, is the method preferred by the author, both philosophically (it's fairer and involves less conflict) and pragmatically (it usually works better), it's not always the best method. If the other party is untrustworthy, isn't really interested in coming to an agreement, or is only interested in a one-sided agreement in his favor, you may want a negotiator who can play his game, and play it well. Analyze the situation, and pick someone who can do what needs to be done.

Seeking to convince the other party to agree to negotiation, mediation, or fact-finding

To avoid suspicion, start with the concept of ADR. Think about why the other party would want to accept negotiation, mediation, or fact-finding. For many of the same reasons you would, the reasons we discussed above in "Why would you seek a negotiator, mediator, or fact-finder?" Some arguments that might prove successful:

• You might present it as a matter of mutual benefit. The benefits involved might be financial, public relations-related, political, social, or some other. A developer might see negotiating with an environmental group as a way to build a development that potential buyers see as "green," and the environmental group might see the negotiation as a way to assure the preservation of a particular piece of open space. Both can benefit by a carefully-crafted agreement.
• You may have a carrot or stick to offer. In the same developer-environmental group situation, the environmental group may be willing to endorse a development that meets the conditions of an acceptable agreement. On the other hand, it may be willing to engage in a long-term extended protest if the developer isn't willing to discuss the nature of the development with it. Given the choice between a possible endorsement and an ongoing nuisance and embarrassment, the developer would probably agree to negotiate.

In a situation like this, you don't have to present both the carrot and the stick (assuming you have both). It makes far more sense to start with the carrot, and use that as your argument. The stick should be held in reserve, and only used if needed. People are generally more likely to respond to offers than to threats; mutual benefit is much more attractive than conflict.

• You might have a convincing cost-benefit argument, based on the amount of time, money, and/or trouble an alternative to some form of ADR will cost. If the alternative is, as it often may be, a lawsuit, it will automatically cost both sides at least several months and several thousand dollars in attorney's fees. Negotiating the situation would probably take much less time, be much cheaper, and provide a better outcome for both parties.

In reality, negotiating an agreement is probably what your lawyers will end up doing, anyway. Lawyers - and judges - almost always prefer that cases be settled rather than go to trial. In the process, however, they'll file numerous motions, have to appear in court several times, and depose (question and get statements from) witnesses on both sides, all of which will eat up time and money. If you sit down together in the first place with expert negotiators or a mediator, you might resolve the issue - and achieve a more satisfactory outcome - in a day or two at a tiny fraction of the potential cost of a lawsuit.

• "This is frustrating for both of us - let's find someone who can guide us through it." In a situation in which you've attempted to negotiate and been unable to come to an agreement, or in which one or both parties have steadfastly refused to negotiate, a mediator or fact-finder may be able to help.

• The particular mediator or fact-finder chosen.
• The place.
• The time.
• Who'll be present.
• Who actually has the authority to approve an agreement.
• How long you'll continue the attempt before going to the next step.

Seeking to convince a court, regulatory agency, or other authority to recommend or order alternative dispute resolution, or appoint a mediator or fact-finder

Also possible is an appeal to the organization, corporation, institution, or other entity that the other party represents or works for. If that entity is concerned either with maintaining its integrity or with avoiding a lawsuit and the attendant bad publicity - or both - it will want to investigate the situation and to negotiate an agreement with you outside of court. It may appoint a fact-finder, or order the other party to come to a settlement with you.

In Summary

• To protect your interests.
• Because you don't have the skills to negotiate yourself.
• Because the other side has one.
• Because you've already tried negotiating yourself and found it too difficult.

• Because you want to devise your own agreement, but you don't trust the other party.
• Because you want to avoid an adversary negotiation.
• Because the parties are too distrustful or agitated to be able to negotiate face to face.
• Because your negotiations have stalled or broken down, and you need help to get them back on track.
• Because the other party has requested mediation.

• To determine the facts, because you and the other party disagree on them.
• Because you believe the other party is not forthcoming or is lying.