You And What Army? How to Neutralize Conflict and Negotiate Justice For The Totally Outgunned, Inwardly Timid, Burnt Out or Socially Defunct by Lisa Bracken

You And What Army?

How to Neutralize conflict and Negotiate Justice

for the Totally Outgunned, Inwardly Timid,

Burnt Out or Socially Defunct 

Excerpts of first three chapters:

  Introduction: Standing Tall 

  Negotiation: Benefiting From Gauged and Shepherded Solutions 

  The Negotiation Process: Preparation and Practice 

  

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Negotiation: Benefiting from Gauged and Shepherded Solutions

Conflict is non-discriminatory, and can visit each of us regardless of our station in life. More defining and troubling is our inability to cope with conflict let alone craft it into something positive for ourselves and perhaps others.

From the citizen to the entrepreneur; from the advocacy activist to the attorney… from time to time, we are each compelled to defend ourselves and sometimes others against conflict which may be foreign in concept, confounding in its cause, and unpredictable in its advance.

Of course the good news is, where conflicts exist, so do equal opportunities to resolve them.

Some conflicts are clear and abrupt, requiring swift, direct, address. Others may be seething, corrosive and lingering, requiring thoughtful study of their cause and systems affected by their persistence.

Often, conflicts are sustained because participants believe access to resolution is unavailable, inaccessible or inappropriate. A lack of knowledge inspires fear, and fear begets adherence to failed but familiar tactics in coping with conflict. In this way, one conflict can lead to another, compounding impacts and degrading conditions so severely that a conflicted situation can seem overwhelming.

Thoughtful negotiation can play a vital role in reducing the frequency and rigor of these types of disputes.

Conflicts which are disproportionate; highly complex; severely threatening; or, persistent are often feared most. Conflicts comprising all of the above are frequently viewed to be among the most frustrating and hopeless. So much so, that even staunch advocates of resolution can view these conflicts as battles of attrition, seeking to, at best, influence adversarial cultures through education and sometimes incentive.

Whereas, such an approach is certainly sound and has been shown to affect degrees of generational
change, active, on-going negotiation can accelerate and amplify this beneficial process by eliminating, shaping or introducing conditions which might otherwise go unnoticed or untended. This type of transformative influence defines the purpose behind and approach to evolved negotiation.

This chapter explores and summarizes the benefits and potential of negotiation by:

     ● Introducing negotiation within a comparable framework of other, primary alternative dispute resolution forms;

     ● Distinguishing evolved negotiations from other negotiation purposes;

     ● Demonstrating the reasons for and benefits of qualifying a negotiation option through a determination of 

        primary objectives; and,

     ● Demonstrating the value of gauging potential success through risk assessment.

Negotiation – an integral part of Alternative Dispute Resolution

In this new millennia we find ourselves transitioning through a maturing age which has reached for and in large measure secured a more standardized and systematized approach to conflict.

In developed countries, this structure includes a formalized legal system with courts or tribunals designed to streamline as well as make more equitable and predictable the concept of dispute resolution.

These modern structures and processes are merely developed and more codified expressions of ancient systems of alternative dispute resolution, still practiced in many cultures in accordance with traditional conventions.

From the beginning, these ancient measures quite naturally accommodated our earliest tribal interactions with one another. Efforts at conflict resolution among relatively equal adversaries have frequently launched with a conversation and ended with some agreeably constructive compromise… negotiating.

Sometimes, impassioned arguments are heard before a council or perhaps facilitated by a respected neutral party… mediation or arbitration.

Sometimes, the participant in possession of the bigger stick simply smashes their opponent. Smashing with a stick can apply to any of the three methods noted above – even if figuratively - because, modernized or not, our ever-evolving efforts to secure advantage from our structured designs persist through time.

As we transition through this age of rigid legal applications, our stifled reliance upon such systems to settle even minor disputes has overloaded it. Further, industrialized and political forces have adapted to legal systems, corrupting them and leaving a broadening segment of the world’s population underrepresented and in some cases without access to justice.

In reaction to diminished capacity for justice through the application of what is becoming an inefficient and fallible legal process – even for those who have learned to successfully manipulate it, Alternative Dispute Resolution (ADR), and negotiation as a component, has become organized and recognized as a formalized practice in resolving conflict.

In essence, like bacterium adapting to an antibiotic, too many have learned to manipulate the legal system, rendering it less effective. So, once again, we are implementing other, more creative and accessible means of conflict resolution to seek fast, effective evolutionary advantage.

Naturally, there is an inclination to also make this process more standardized and predictable. ADR in name, as well as in its categorical organization and guidelines of implementation, reflects perennially updated incarnations.

In an attempt to recognize, make more formal and elevate the very ancient and informal process of conversation and hearing, a handful of primary ADR approaches now command center stage in an effort to draw two opposing interests into agreement.

As in the past, these techniques commonly include:

● Negotiation: Parties in conflict engage in the process of communication in order to arrive at mutual agreement, thereby resolving a dispute themselves. Long-implemented patterns; integrative methodologies; as well as the rise of professional negotiators have added a modernized dimension to this approach.

● Mediation: Parties in conflict air their dispute before a third party facilitator or council intending to guide the parties toward mutual, though non-binding, agreement or resolution. This approach has been updated to reflect more standardized procedures, as well as training and certification of mediation professionals.

● Arbitration: Parties in conflict air their dispute before a third-party facilitator or council – often formally recognized contractually or by a legal body – who then issues a binding decision resolving the dispute. Of all three primary ADR approaches, arbitration is the most closely scrutinized due to its binding nature. Similar to litigation, arbitration benefits from qualified hearing and fair procedural rules which continue to undergo evaluation, evolution and, of course, influences positive and negative.

As an enlightened, modern movement, ADR gained important recognition when the American Bar Association established the Special Committee on Minor Disputes in 1976.

In a burgeoning world of increased competition for diminishing resources; widening socio-economic, technological and educational rifts; as well as cultural and political unrest, new models and patterns of human conduct have emerged, and conflict – serious, large scale and persistent conflicts - are increasing.

Today, increased worldwide conflict is concentrated among three primary sectors of organized, human activity:

● Citizen populations striving for access to equality, basic life-sustaining resources, and, in many cases cultural dominance;

● Political entities privileged to administer but forgetful of mission, are frequently coupled with…

● Commercialized partnerships striving either cooperatively or competitively for greater global domination via the possession of evolved knowledge and technology; economic vitality; and, political as well as social compliance.

Participants from each of these demographic sectors increasingly clash over competing or conflicting interests. In situations involving participants with unequal assets and influence, these conflicts have accelerated the otherwise gradual and stable evolution of societies, debasing harmonic sustainability.

First to capitalize on a more efficient means of resolution, large, highly organized, financially and politically fortified entities of industry have embraced ADR as an effective method of resolving disputes while enjoying minimal disturbance to ongoing operations. Corporate entities often engage in ADR among themselves; with trade partners, bureaucratic regulators and those bringing suit.

In commercial situations among equally motivated and fortified participants, alternative dispute resolution generally allows for rapid resolution and encourages structuring of mutually beneficial solutions, allowing opposing parties to quell undesired operational disruptions and get on with the often mutual goal of efficient profit generation.

Worldwide, growing acceptance of ADR as a means of commercial risk management makes ADR a more attractive method of dealing with disputes. But, as access to legal representation through traditional court channels grows increasingly expensive and time-consuming, many top corporations now prefer ADR as a first measure in all types of disputes. As ADR grows in application, its process becomes increasingly standardized yet customizable, realizing savings of both time and money – especially when implemented in the early stages of conflict.

Because of ADR’s proven effectiveness in building consensual agreement between opposing parties, these numbers are expected to rise. Commercial entities are devoting significant internal resources to ADR, including analysts, strategists, expert legal counsel and professional negotiators. This certainly streamlines the process of conflict resolution, ideally aiding in its prevention, but justice is not always won on facts or principal.

Sometimes, the aggregate weight of power ushers unfair decision. Sometimes, there is a good deal of smashing with sticks. Among unequal adversaries, such as when financial wealth acts as the greatest lever in generating or sustaining quiet, endured or uncontested oppression, access to and the manner of negotiations itself can differ. In other words, wealthy people negotiate, poor people plead.

So, for those without the collective influence and powerful representation of dedicated assets and commercial or political association, even ADR can pose unique challenges to the objective of justice and access to it.

Negotiation as a majority component of ADR

Skills necessary to successful negotiation underlie all forms of ADR. Further, of the three ADR applications discussed above, negotiation is, far and away, the most commonly engaged. Given its presence and potential, one’s inability to negotiate effectively can frustrate their ability to recognize and develop situational potential; structure solutions; and, implement them to one’s own or mutual advantage.

In gravely unbalanced situations, effective negotiation can be a challenging endeavor, particularly when operating under the shadow of a very large stick.

If you are facing an unbalanced conflict and have been assigned or have assumed the role of intermediary, you may find yourself managing a situation that may well demand your virtual evolution to practiced analyst, director of affairs and adept negotiator.

Negotiations spring from the dynamics of conflicting conditions. As such, situations that drive the need for negotiation and influence the act itself are plasmic in nature; that is, comprised of a flexible framework reactively morphing to inside and outside pressures which are in continual flux. A strategy acting as an asset now can literally become a liability in the next five minutes. Therefore, there is no blueprint for negotiation success, no standard approach that can win the day.

Because negotiations are outgrowths of conditions and process, special consideration must be given to the conditions which have given negotiations rise as well as the process implemented to sustain and eventually conclude it. With each new step generating greater opportunities to move further, every negotiation must be an insightfully integrated and masterfully commanded approach to produce success.

Understanding the nature of negotiation – particularly a long-range, evolved negotiation campaign; better anticipating the inherent level of involvement and risk; and, possessing workable knowledge of hundreds of potentially applicable principals can provide both students and evolving practitioners a stronger start and a more successful finish.

Practical techniques and applications discussed in this guide offer specific insight that, with skill, wisdom and practice, can be useful in securing short-term interests; guiding conflict toward a mutually beneficial outcome; and, generating greater long-term stability.

There are only three factors which will most influence the outcome of any negotiation:

     ● The stakes;

     ● The levelness of the proverbial playing field; and,

     ● Participants’ abilities to re-level the field.

Your skill in manipulating and managing these factors will determine your degree of success. If you and your adversary share mutual need, you can redouble your efforts toward resolution by working toward common goals. However, both success and challenge invite competition, which can steer even an amicable and cooperative beginning into a more opposing arena.

A successful negotiator holistically acknowledges the reality they are working within. Through awareness; preparation; strategy; adaptability, and persistence, they will then modify reality; modify themselves; and/or modify their needs and objectives to make the most of possibilities.

The Five C's of Negotiation

Essentially, negotiation embraces five main concepts – I call these the 5 C’s:

     ● Control

     ● Clarity

     ● Competition

     ● Cooperation

     ● Compromise

When opposite your adversary at the negotiation table, you will want to either control the environment and the process yourself, or participate in an environment and process which is controlled in a manner which you feel is agreeable.

Not every component of a situation will be contentious. When undertaking discussions with your opponent, dispense with non-contentious issues, and discuss contentious issues directly, simply and fully, enabling clarity to its greatest degree.

Negotiations benefit from and become the result of the artful application of competition, cooperation and/or compromise. This is often achieved through two primary means: strategically approaching avenues of achievement and exercising advantage through leverage.

Distributive bargaining assumes there is a fixed objective or goal, and opposing interests consistently defend their positions to gain the most of it. This competitive approach tends to represent the adversarial style of bargaining; and, coincidently reflects the approach taken by many international legal systems.

Integrative bargaining typifies a situation where both parties benefit from a more cooperative dynamic, usually working through a series of smaller issues to strike a mutually beneficial accord – one which may even reveal greater benefit than previously recognized.

Usually, lesser and greater degrees of compromise are further applied in order to reach accord.

Approaching a negotiation while relying on too-singular an approach will frustrate one’s ability to view issues and solutions more roundly. Therefore, the successful negotiation is likely to be an artful blend of competitive, cooperative and compromising approaches in an effort to reach a comfortable or at least tolerable agreement.

Understanding these primary issues and approaches to negotiation will help you frame your objectives within such a context; better prepare your strategy and yourself for negotiations; and, ultimately facilitate a smoother process toward resolution.

Evolved negotiation as a specific approach

Regardless of the complexity, severity of threat, or unbalanced resources of participants, no conflict is to be feared – it is to be wholly embraced, dissected, diminished and finally dissolved, ultimately redirected toward the evolution of positive, productive transformation.

While they can, for a time, be overwhelming, no conflict should be considered hopeless.

All negotiations are defined most by their need and potential for resolution. Therefore, a majority of negotiations entail negotiating within currently defined parameters to serve immediate need.

Such negotiations may apply to a labor strike, a hostage situation or a dispute between commercial entities. Achieving objectives within these confines demands categorically similar, but also specialized approaches and skill sets.

For instance, a labor strike must consider the role of an industry in an economy at the time of the strike together with the needs of labor forces, corporate interests, suppliers and consumers.

A hostage situation, among the obvious risks at hand, must consider the heightened sense of volatility of the perpetrator(s); vulnerability of the victim(s); great urgency; and, opportunities of the physical location.

Commercial interests in dispute are likely to be so due to a relationship of some kind, either competitive or collaborative. Therefore, negotiations of this sort often consider current and future economic factors of supply, demand, risk and reward together with opportunities to optimize individual interests as well as beneficial partnerships.

While different in their scope, details, demands and objectives, it is their firm confinement within established parameters of a situation enhanced by the imposition of an abridged timeline that make these types of negotiations similar.

So, it is very often crises situations which suggest and benefit from negotiation as well as a near-at-hand solution.

However, other needs and potentials for resolution may arise from entrenched or unbalanced disputes involving failed policies and systems; at-risk, disenfranchised or damaged populations; unfair laws; territorial clashes; or, long-term threats to national security.

Very often, these types of negotiations take place over an extended timeframe and involve broadly engaged systems of support and dysfunction. Therefore, while they are still defined by conditions of the moment, the moment itself can last longer than anticipated… extending, morphing and generating new conditions and inspiring greater participation from vested parties as it moves along a broad and extended timeline of conflict. This type of synergistic development often commands a far deeper level of analysis and involvement than may have initially been anticipated.

Further and very often, vested parties, such as individuals wronged within such circumstances, must continue to endure impacts, finding ways of co-existing with oppression all the while seeking and advancing reform and resolution.

For instance, an environmental crises caused by an oil tanker running aground and fouling a region may take twenty or more years to resolve through a court of law. During that time, negotiations between opposing counsels may appropriately attempt to impose a sense of fixed time and place around negotiations seeking to resolve the issue for a class of plaintiffs – some of whom, as well as counsel, may expire in the interim.

Attempting to confine conditions to the original set of circumstances within an extended timeframe imposes a host of difficult challenges such as coping with aggrieved and frustrated families, as well as affording, appointing and educating new counsel, all the while losing public momentum and incessantly wrangling over what often refine into infinitesimal and interpretable legal points. Eventually, a settlement is reached, and important points of the law are clarified. A handful of aging widows, still capable of recalling the originating event, rejoice but never actually use the word ‘justice’ to describe their sense of closure.

An evolved approach to negotiation applied to the same situation, and perhaps incorporated as a strategy of a long-range legal dispute could actually harness and utilize changes in surrounding conditions in order to leverage a settlement in perhaps a third to half of the time, all the while advancing conditions which help prevent recurrence of damages.

One very compelling reason for an evolved approach to negotiation is the imposition of change in modern society. Technology is driving high-speed change in all arenas of human endeavor, from communications to public values and ideals; from media to the genesis, degradation and re-birth of communities; from research and development of relevant factors to how the need for modified law is demonstrated, enacted and tried.

We may be inclined to contain a conflict’s circumstances within a fixed point in time and place. But, our world then evolves without our participation and perhaps even our notice, causing us enormous loss of conditional potential and value.

Change is an inevitability of evolution. Our resistance to it, born of a fear of loss to ourselves stifles our own growth; growth around us; and, leads to conflict, driving us backward and generating even more conflict.

Instead of resisting it, why not acknowledge, harness and steer that change, imposing it around a framework of on-going negotiation?

What if we were fearless in what tomorrow brought because we knew we could find a way to leverage it in order to secure short term interests, all the while evolving into better relationships? Wouldn’t that seem more efficient and effective in the long run? Wouldn’t that better prepare us for future conflicts, and perhaps even reduce their frequency and severity?

Evolved negotiations can help us achieve that and more. It can also evolve us, as individuals, in better step with our rapidly changing environment; help us anticipate its challenges; and, generate more fruitful systems and relationships ahead of its advance.

What if we could unwind chaos and implement positive transformative change… quelling conflict by welcoming and embracing it? Certainly, we can. So, the questions then become: What might such a desire and ability generate across a worldscape of oppression, suffering and sorrow? What phenomenal potential have we yet to achieve?

There has long existed an unnecessarily deep disconnect between social change and negotiations. Advocates striving to enact change through community organization, education, prevention and the
implementation of outreach projects are often excited by the potential but ultimately frustrated by the practical application of negotiations. This is often because negotiation is viewed through a procedural lens and relegated to legislative or legal processes by a team of specialized folks versed in those doings.

Those who are inspired to engage a community while inspiring community action in kind are often put off by the sometimes slow, methodical or disappointing nature of law and its application. When confined to this perspective, I would find negotiation frustrating also. Negotiation can be so much more; but, usually, we neither recognize nor apply its full potential. Rarely do we fold it within a holistic approach inclusive of all hands, hearts and minds toward a long-range campaign reforming every facet of system relevance simultaneously.

Social change and negotiation are actually natural and prolific partners when married in order to implement more holistic, meaningful, efficient and lasting transformation.

And that is precisely what is most required when addressing persistent and fertile issues such as failed policy; inadequate legislation; damaged and disenfranchised populations, which can generate opportunities for inequality, exploitation and abuse.

To effectively counter this type of social corrosion, we must embrace all failures and solution potentials within entire systems while utilizing our skills and time to do so efficiently.

In order to reach their greatest potential for sustainable resolution, these especially difficult and challenging situations require the application of standard negotiation processes enveloped within or coupled to an enhanced, evolved approach inclusive of and harnessing changing conditions. Strategic analysis can enable this approach as well as efficiency through the selection of key leverage and amenable avenues of achievement.

Certainly, then, evolved negotiation demands greater analysis, strategy, planning and projection. It entails guided manipulation of the interdependent network of influencing factors with the purpose of evolving currently defined parameters in order to achieve priority long-range objectives while working toward meeting immediate needs; actually meeting immediate needs; and/or, altogether altering needs to better serve long-range objectives.

In this way, evolved negotiation considers both long-range and short-term needs. Extremely malleable, evolved negotiation can act as a broad vessel of an imbedded standard approach, or it can be a shortened, addendum process attendant to a standard negotiation.

Like other types of evolution, evolved negotiations requires a driving need; a process of implementation; symbiosis; and, maturity.

Many negotiations may indeed comprise a driving need and a process of implementation; but, symbiosis of situational influences may go largely unnoticed or considered as a factor of strategy. Certainly, maturity may be absent as time constraints bear upon the negotiation framework.

Also, whereas complex, unbalanced and protracted conflicts incorporated of extended systems certainly demand an evolved approach to negotiation, they may not receive such consideration. These conflicts may find themselves readily subjected to a standard process and pressed within the parameters of
existing condition without benefit of strategic manipulation or maturity.

For instance, a negotiator may perceive a wanted objective as the end target to be secured within a short time frame. Perhaps, though, what is thought of as the end target could far better serve as a short-term goal within a strategic plan unfolding over a longer timeline shortened through greater strategic analysis, planning and implementation.

When the duration of a negotiation is underestimated due to influences of, for instance impatience, intolerance or a failure to recognize reality, forcing perspective into a narrow confine can blind a negotiator to a foreseeable, achievable future and enlist reactive behavior, sabotaging the full potential of strategic development and a more beneficial outcome.

So, negotiating complicated, disproportionate, entrenched conflict can fail most assuredly simply because, in analyzing the conflict, the negotiator fails to recognize the need for, or, the benefits of an evolutionary approach.

This common seed of discontentment can be found at the heart of any widely deferred and broadly consequential crises, such as among international disputes, or in coping with national budgetary crises. In fact, nearly every preoccupation of an administrative government – health care; energy development and consumption; agricultural affairs; economic development; transportation and infrastructure; foreign policy; domestic policy; communication; education and defense… all demand an array of interrelated, complimentary and evolved approaches to specific controversies, conflicts and demands within an overarching evolved approach to overall stability and vitality.

To the extent that a conflict is systematically complicated, disproportionate and systemically entrenched… to the extent that all four elements of driving need; process; symbiosis and opportunities to mature a situation are present, the negotiator should strongly consider evolved negotiation as a specific approach to resolution, whether it is implemented as carrier or simply as an attendant mechanism.

Conflicts suggesting an evolved approach often demand comprehensive situational analysis and the execution of myriad, complimentary strategies including the gradual evolution of an adversary, their culture and values, methodologies and systems, institutions and other supporting structures… all the while, strengthening your position, securing short-term interests, and evolving conditions to support a more equitable, compatible and sustainable solution.

Negotiation of this type envelops and extends far beyond a series of short-term discussions with adversaries. It demands the recognition of systems perpetuating conditions as well as direct address of their sometimes entrenched, multi-dimensional influences. Such influences may be represented by interdependent realms of education and science; social systems; media; public perception; law; bureaucracy; and, policy.

Evolved negotiation represents a holistic approach to complex, unbalanced and/or protracted conflicts. It possesses the extraordinary potential to transform all facets of a situation regardless of one’s access to and influence upon each one.

For example, if you cannot directly and equitably negotiate with your adversary, you may be able to manipulate conditions, evolving them and finally, your adversary by association.

You may seek to enhance your value by generating and compiling leverage in order to influence conditions or your adversary directly.

You could influence components of supply in order to affect demand, thereby strengthening your leverage and influencing a hierarchy of events, which would have bearing on participants and conditions.

Because of its dual focus upon long-range and short-term interests, as well as its unique capabilities to influence the outcome of both, evolved negotiations and its inherent influences, processes and potential can offer a spectacular pathway toward resolution of complex, long term or unbalanced conflicts.

Ultimately, practitioners of evolved negotiations understand that all accountability begins within. Genuine solution embraces higher commitment. And every ending is a point of new beginning.

Orchestrating evolution

Let’s assume that after considering the plausibility and benefits of negotiation, you find you must engage an evolved approach in order to transform conditions; apply leverage; extend a timetable or simply add value to your position in order to compel your adversary to negotiate.

Depending to what degree you intend to evolve the situation, I have found there are a handful of key steps involved in moving forward. These are:

• Situational analysis: on-going, thorough analysis of the situation with particular attention paid to its potential for leverage;

• Strategy planning and implementation: Charting a course of action while working within associated realms of influence, such as bureaucracies, commerce, science or media;

• Outreach: educating and affiliating with target partners including segments of the general public and aligning them with your vision, mission and goals;

• Building and sustaining momentum: managing a paced and targeted advance; and,

• Leveraging advantage: finding ways to capitalize on transforming conditions.

Reasons for and benefits of negotiating

Individuals, small groups such as advocacy organizations, and even legal representatives may labor against all odds when defending against or challenging a fortified adversary. The tremendous stress and asset drain of such a scenario usually indicates strongly compelling reasons for doing so.

These reasons are often grounded in fundamental and principal struggles over imminent or incurred harm often frustrated by:

     ● An absence of, or, insufficient proof;

     ● An absence of, or, insufficient accountability;

     ● Legal interpretation;

     ● Philosophical notions of right and wrong;

     ● An absence of, or, lack of resources;

     ● An attempt to retain control over devolving conditions; and/or,

     ● Because the full course of judicial review is inaccessible.

Usually a risk of mutual loss exists to inspire the act of negotiation between two parties, even if losses are disproportionate or may not occur simultaneously.

For example, a worker may have experienced harm from a corporate policy in violation of civil rights, but the employee’s threat of suit suggests a risk of loss to the employer, potentially inspiring both parties toward negotiations.

While an adversarial style of negotiation is appropriate in certain situations, integrative bargaining can be a very sound principal from which to launch or conclude negotiation efforts. If you can put aside animosities and forge a mutually beneficial working relationship with even your staunchest adversary, both parties are more likely to walk away from the table feeling relatively satisfied.

Certainly, if persistent conditions have contributed to the proliferation of such complaints, a short-term but evolved approach to negations, involving at least the modification of an adversary’s culture and enabling policies should be considered.

At the heart of negotiation is the principal of preservation: give some, gain some in an effort to potentially avoid losing everything. While circumstances rarely suggest the risk of losing everything, negotiation makes perfect sense for corporations where every action and incremental loss of profit margin must be justified. Negotiation also makes sense for individuals who otherwise may be unable to afford access to legal representation. This principal of preservation also points to why attorneys are increasing making negotiation part of their representational repertoire.

Attorneys are trained to represent the best interests of their client in an adversarial or conflict-driven system of law. Your direct participation in the negotiations process can introduce an element of neutrality in the spirit of cooperation; but, your chances for success can be improved if you first qualify your negotiation option; define your participatory role; and, maintain objectivity.

If your efforts to negotiate are successful, you may save significant time and expense and even preserve an important relationship along the way. In its finest sense, negotiation can move you and your adversary from crisis to contentment. Evolving negotiations and its inherent potential for comprehensive, adaptable transformation make this even more possible.

If your reasonable requests are not fairly addressed, your adversary may have provided you a very strong lever in pressing your issue into more conventional, formalized legal channels. Strengthening your leverage in this way can introduce different opportunities from which negotiations may be revisited.

I have found that five straight-forward measures can be applied to evaluate the potential of a favorable
negotiation outcome.

Five measures in qualifying your negotiation option

Measure One - Negotiations can only be truly successful when both parties possess a motive to work together to seek solution, though motives need not be equal.

In a high profile – highly charged situation with media, public and/or political involvement, the environment is dynamic and a motive can appear or disappear quickly. Sound strategy and alertness to shifting atmospheric pressures are keys to success.

Measure Two - All parties agree to the scope of matters to be discussed.

This enables control for both parties. Some negotiators maintain ‘throw away’ items used as bargaining chips. While this can be sound strategy, too many such items clutter the table and detract from the negotiations at hand – a tactic that can be counter-productive in a high-pressure situation.

Measure Three - Negotiations will have the best chance for fairness when both parties possess equally weighted leverage; that is, mechanisms which inspire not only conversation but compliance.

Your opponent may possess four “levers”, whereas you possess one; however, both parties will stand a more equal chance at effective compromise if the two sets of levers are equal in their influence. That is, they represent something of equal value the other wants or wants to avoid. Individuals or small groups challenging or defending against a fortified adversary will likely have to increase their influential value through organized momentum; persistence; access to information; and, the creative use of leverage.

Measure Four - Negotiations can only move toward resolution when both parties possess clearly defined priority objectives comprising a bottom line and creating a finish line to work toward.

A negotiation is like a competition. It can be thought of like a soccer game or a chess game. Each opponent is striving to get to the other side to win what they want. Each goal or pawn reaching the opponent’s side represents a point in favor. There are likely to be losses along the way. A good negotiation will likely leave both parties feeling slighted but mostly content - having compromised only to the degree of living with their decision. A battle-hardened and effective trial attorney friend once said “A bad negotiation is better than a good law suit”. Having participated successfully in both, I find a lot of wisdom in those words.

Measure Five - The potential benefits of negotiation should outweigh the potential costs and risks associated with pursuing litigation or other dispute resolution alternatives.

Determining the primary objective

A clear objective is essential to successful negotiations. But it is important to realize that objectives can change in response to a range of offers and opportunities presented by your adversary.

Adherence to your bottom line can help you maintain stalwart convictions and avoid whittling down vital interests. Should your adversary fail to yield - provided your bottom line is well-conceived and properly defended - you may leave the potential for amenable resolution behind you, but you can confidently walk away from the table knowing you invested a sincere effort. Further, such a breaking point may provide your adversary clear insight into your position which may result in a request to rejoin discussions.

By internally reserving the right to either adhere to or revisit your bottom line, you allow yourself the freedom to reassess values in light of other options and more beneficial conditions which may be offered by your adversary.

Be clear on what you need, but keep an open mind.

Gauging potential negotiation success through risk assessment

In any situation, there is always benefit and risk, advantage and disadvantage. And you are affected by both, as is your adversary.

A major tenet of successful negotiation lies in clearly and thoroughly determining advantages as well as disadvantages together with priorities, potential consequences and alternatives in light of ever-evolving circumstances, then structuring a comprehensive and interwoven framework that makes the best use of all related dynamics to your best advantage.

Alternatives to court will nearly always be worth consideration, at least as an initial measure when applied properly to appropriate situations. However, failed negotiation could carry risks.

Because the intent of negotiation is to engage in a good faith attempt at resolution, the greatest, most readily and widely perceived risk is associated with exposing one’s strategy and the substance of their defense. Naturally, such disclosures could allow an adversary – whose motives to join in such a process may be less than honorable – to seize the opportunity to fortify their position before heading off to court.

Although I believe there is truth to this concern, the process of discovery within the judicial system is, itself, designed to avoid evidenciary ambush and prepare opposing counsel for a fully disclosed defense.

Assessing estimated risk and gain can and has been accomplished through mathematical applications; but, it can also be an estimation of intuitive reasoning. Litigation and ADR are both subject to uncertainties of outcome. Therefore, both intuitive reasoning and complex data input on a computer program can be flawed as projection methods.

How flawed is such assessment, potentially? Our ability to conclude the extent of acceptable risk while assessing an optimistic perception of potential gain is determined subjectively. This determination is dependent upon perishable and potentially skewed evaluations of information. And, of course, the information, itself, is limited in its accuracy and relevance according to the moment it is available to us.

In other words, we must base our judgment on information which can quickly become outdated, so we must remain flexible. Also, we may not know all the variables involved in a potential outcome, especially from our opponent’s point of view, until we are involved in the process of either litigation or negotiation. This represents very real risk and one which should be considered seriously.

Certain aspects of evolved negotiations, such as extended time lines; coalition activity and widely distributed efforts, can present enhanced risks and rewards. Since risk can switch to reward and vice versa, the value of each must be determined by the purpose of negotiation and the value of outcome.

For instance, in a crises situation, long-range influences upon entrenched supporting structures, such as regulation, may pose too great of a short term risk. Perhaps a solution is needed now, not when the problem is finally exposed and wheedles its way through a reluctant or even hostile political process. On the other hand, embarking on such a transformation may lead to opportunities to influence public perception which could actually serve the abrupt resolution of a crises situation and still serve longrange goals.

Negotiation is an organic and intuitive process – but one which can be guided, reinforced and leveraged with knowledge, common sense, commitment and use of process. Fortunately, You And What Army? offers insight into all of that and more.

Assessing risks

The most common means of anticipating potential risks and gains associated with negotiation is to intuitively assess the obvious through a positive/negative, ‘pro vs. con’ approach. This method, sometimes clouded by optimistic and broad-brush thinking, can lead the unwary into unexpected pitfalls.

An accurate and common-sense approach to determining your bottom line and assessing risks are critical in supporting any negotiation opportunity.

While there is no definite method which can clearly delineate potential risks and gains, integrating the following aspects can help better anticipate and account for them:

     ● Carefully consider the detailed information at hand – inclusive of objectives, obstacles, threats and opportunities - at the time of your assessment.

     ● Determine how information can change under various circumstances. Further consider how you will recognize when it has begun to change as well as how you may be able to influence those changes for your benefit. Consider how your adversary might engage likewise.

     ● Always be alert to shifts in circumstances which could occur beyond your realm of knowledge or consideration and which could therefore result in the arrival of new information.

     ● Recalculate your best educated guess as information and conditions evolve through time, always considering the potential risks and rewards of alternatives to negotiation.

When weighing the risks of negotiation and deciding what information to consider, certain categories of concern stand out and can offer insight through reasonable answers to important questions. For instance, ask yourself: How might a successful negotiation process benefit you. How might it benefit your adversary? All of this should be weighed against other approaches to resolution and how they might benefit you, as well as how they might benefit your adversary. Conversely, what might be lost through negotiation or other resolution efforts, such as, for example, arbitration or trial?

Attorneys and trials can be very costly, and a jury trial even more so. What are your chances of concluding a trial with everything you hope for? What will the jurisdiction be? This can be a tricky issue with adversaries such as multi-national corporations or bureaucratic agencies. Will you have to make special arrangements to attend a trial? How much of a hardship must you and your family endure in seeking justice? How long will it divert you from earning income? If you lose a court effort, you may still have to pay attorney fees and even those of your adversary. Even if a case is represented by legal counsel on a contingency basis, plaintiffs may sill be faced with the costs of assembling the scientific data used to support a claim, and there may certain limits placed upon damages.

In advance of engaging either a court effort or negotiations, a negotiator should seriously consider eligible damages together with the costs of pursuing them through either method.

Assessing the potential risks and gains associated with negotiation is complex and akin to weighing the decision to invest in an apple orchard or purchase apples through a retailer for the next twenty years. It may seem less expensive to plant an orchard, but when you consider the costs of purchasing the land, years to maturity and the endless struggle against pests and disease, purchasing apples from your local grocer may suddenly seem a viable option.

Less enabled entities challenged by a large adversary must determine how much risk is too much risk as well as when the time could be right to pursue negotiations as a means of conserving limited resources.

Depending upon the circumstances, negotiation can represent an early effort to reduce losses before they grow out of control – this is especially true when the risk of damage is great and time favors greater discovery of supporting evidence for cause.

Unfortunately, some will attempt to use negotiation as a means of quickly and lightly settling a dispute before actual damages are accounted for and cause can be determined. These types of agreements could artificially constrain the scope of damage and restitution that would be and perhaps should be otherwise associated with actual damages likely revealed over a longer timeframe. Therefore, an early offer to pursue negotiation could be a red flag to either side receiving it.

Your adversary might insist that one benefit of early negotiation is to avoid the build-up of animosity. It would be wise to suspect the sincerity of any attempt at amiability which is contingent on early settlement - perhaps without benefit of complete discovery.

Risks of both litigation and negotiation bear consideration when choosing how far to advance a trial effort or how much to invest in negotiation; and, certainly these are issues a qualified attorney can help illuminate based on their experience and known parameters of your situation.

The process of negotiation, depending on its complexity, could take weeks, months, even years. But so can litigation. Depending upon how willing you are to concede, it may take only days. Manage the negotiation schedule according to what works best for you. Typically a shorter negotiation period is best as it keeps the parameters more tightly drawn and predictable. The longer the process drags out, 
the more likely you’ll experience more rushing and stalling on both sides, as the various, often unpredictable influences of the negations process unfurl and leverage against one another. These are things like investigations, commission reports, studies, findings of fact and results from various tests and other quantifiable aspects of the discovery process. If you stand to benefit from these aspects, lengthening the process may help you leverage your position. Under such circumstances settlements can ripen well with age, but, as with good wine, you want to savor the last drop seconds before it turns into vinegar. 

Large, fortified adversaries are vitally interested in preserving status quo such as regulatory policies benefiting profit and production, so they may encourage you to partake of negotiation before you or your case can gain full benefit of maturation. It’s likely that an offer for negotiation from your adversary is well timed to strategically leverage their investment in any of their vital interests. It may come at a time when you both have exhausted significant financial recourses on attorney participation, or perhaps after judiciary review but before a court decision so your adversary can better ascertain their chances for success in court.

It’s important to consider that the circumstances driving a settlement proposal could eventually end up argued in a court of law. This does not imply you are pursuing negotiation under less than good faith conditions. To the contrary, this early assumption tends to favor reasonable requests; well organized evidence; a strong intelligence network; and, the best drafted instrument of agreement helping avoid loopholes and unintended consequences of either party.

Conclusion

Negotiation is a major component of Alternative Dispute Resolution (ADR) due to its value in expediting flexible agreement between two parties.

It involves:

     • Achieving clarity on contentious and non-contentious issues;

     • Exercising or accepting others’ control of the process of agreement; and,

     • Adopting a cooperative and/or competitive approach toward agreement, often inclusive of compromise.

Negotiation is best enabled when parties fully assess risks and:

     • Share a motive to work together;

     • Agree of the scope of matters in question;

     • Possess equal leverage toward a clear objective: and,

     • Stand to achieve greater benefit over other methods.

Adversaries may be unequal in their motive or leverage; yet, access to resolution may demand a shared-value approach.

Additionally, certain complicated, entrenched and oppressive situations demand a coordinated approach engaged by those most intimately and continually impacted, across a range of influences both competing and complimentary.

Resolution, then, compels meeting short term needs together with long-range objectives while working toward the evolution of both conditions and one’s adversary. Evolved negotiation offers a gauged, planned and specific approach toward achieving participant equity while meeting immediate needs and shaping a more beneficial, attainable future.

An evolved approach aids the negotiation process through the coordination and management of:

     ● A thorough situational analysis;

     ● Strategic planning and implementation;

     ● Educational outreach;

     ● Affiliation and the development of partnerships;

     ● Building and sustaining momentum; and,

     ● Exercising leveraged advantage,

In deciding if negotiation is the best course of action, remember, unless there is the potential for mutual benefit, or you can provide your adversary a compelling reason to settle without taking their chances through other avenues which could offer a better outcome, then the situation is probably starting out very unbalanced.

If not properly estimated, developed and managed, through, perhaps, an evolutionary approach, these inherent weaknesses can become a great source of frustration, lead to failed efforts and worsen a crisis situation.

However… and very importantly… given adequate time, tools and knowledge, anything is possible – and that’s what You And What Army? Neutralizing Conflict and Negotiating Justice for the Totally Outgunned, Inwardly Timid, Burnt-Out or Socially Defunct is all about.

On to The Negotiation Process: Preparation and Practice
 

 

Copyright, Disclaimer and Reprint Permission

This Introduction component of the publication: You And What Army? How to Neutralize Conflict and Negotiate Justice For the Totally Outgunned, Inwardly Timid, Burnt Out or Socially Defunct is Copyright 2011 by Lisa Bracken and published by New Flight Books.

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Lisa Bracken is a paralegal and therefore, a non-attorney. The content of this publication is NOT legal advice. Legal advice should be specific to the circumstances of a situation as considered within the appropriate legal jurisdiction by a qualified expert on the matters in question; therefore, readers are encouraged to seek the advice of qualified counsel under applicable circumstances. The contents, herein, are based upon the author's experience and are provided for general informational purposes only. The author and publisher cannot and therefore will NOT guarantee anyone's success or failure from their interpretation and/or application of the contents. Others' interpretation and application of the contents should comply with all relevant and applicable law.