1) Strategic Barriers.
2) Principal and Agent Barriers.
3) Cognitive Barriers (Perception Barriers).
1) Strategic Barriers:
A Strategic Barrier is caused by the strategy adopted by a party to achieve his goal. For example
with a view to make the husband agree for divorce the wife files a false complaint against her
husband and his family members alleging an offence under Section 498 A of the Indian Penal
Code.
A mediator helps the parties to overcome strategic barriers by encouraging the parties to reveal
information about their underlying interests and understanding the strategy of the party.
2) Principal and Agent Barriers:
The behaviour of an agent negotiating for the principal may fail to serve interests of the principal.
There may be conflict of interests between the principal and his agent. An agent may not have
full information required for negotiation or necessary authority to make commitments on behalf
of the principal. In all such contingencies the mediator helps the parties to overcome the 'Principal
and Agent Barrier' by bringing the real decision maker (Principal) to the negotiating table.
3) Cognitive Barriers (Perception Barriers).
Parties while negotiating make decisions based on the information they have. But sometimes
there could be limitation to the way they process information. There could be perceptional
limitations which could occur due to human nature, psychological factors and/or the limits of
our senses. These perceptional limitations are called cognitive barriers and can impede negotiation.
It is important a mediator to identify Cognitive Barriers and use communication techniques to
overcome it.
Example of Cognitive Barriers
Risk Aversion: People tend to be averse to risk regarding gain and would rather have a certain
gain than an uncertain larger gain. They are ready to bear risk with regard to loss. They would
avoid a certain loss and take a risk of greater loss. For example, some parties would rather
postpone a certain loss through settlement at mediation for an uncertain outcome of the trial in
the future. A good mediator will assist the parties in addressing these realities.
Assimilation bias: The tendency of negotiators to ignore any unfavorable information. For
example, a court decision which could prejudice the case. To counter this, repeat the important
information, provide documentary and other tangible evidence and reduce information to writing.
Inattentional blindness: Negotiators sometimes fail to focus on the entire picture and instead
focus only on specific details. To counter this, the mediator may frequently shift focus from the
specific to the larger picture.
Reactive devaluation: People in conflict have a tendency to minimize the value of offers from
the other side. To counter this, mediator can change the focus from the source of the offer to the
terms of the offer. For example, instead of saying "the plaintiff offers 5 lakhs" the mediator may
say " will you be satisfied with something like 5 lakhs".
Endowment effect: The tendency for people with property or interests in something to over
value it. (their house, their land, a lawyer's evaluation of their case etc.) . To counter this, the
mediator may enquire about the actual value, use objective criteria like the Sub-registrar's
valuation, ask for the latest Court judgment supporting the submission etc.
Psychological impediments:
People make unwarranted assumptions about the motives and intentions of the other parties.
Anchor Price, Aspiration Price and Reservation Price
To facilitate meaningful and successful negotiation the mediator should be aware of the Anchor
Price, the Aspiration Price and the Reservation Price.
Anchor Price is a base number or a set of terms or an opening offer that has to be assessed by
the mediator from the information given by the parties. This will serve as a parameter in the
negotiation. If the anchor price is defined appropriately, parties tend to treat it as a real and valid
bench mark against which subsequent adjustments are made. It must be based on complete
information and if not it can be misleading. Mistaken or misguided anchor prices can increase
the chance of impasse and can have unintended consequences in a negotiation.
Aspiration Price is the price that a party aspires to obtain from the negotiation.
Reservation Price is the lowest a party may be open to receive.
ELEMENTS OF PRINCIPLED NEGOTIATION
(a) Separate the parties from the problem
A mediator should help the parties to separate themselves from the problem.
For example, if Aparna has been consistently late to work for the past 2 weeks, a perception
may develop that "The problem is Aparna." Viewed in this manner the only way to get rid of the
problem is to get rid of (dismiss, transfer etc.) Aparna. This is an example of merging the people
with the problem and illustrates how it limits the range of options that are available for resolving
the problem. To separate people from the problem, the key is to focus on the problem itself,
independent of the person. In the above example, the employer might frame the problem as lack
of punctuality. The employer can ask Aparna about her record of being on time for many years
and the reasons for the recent two weeks of late arrival enquiring specifically whether there are
circumstances that are resulting in Aparna's late arrivals. She may answer that she was involved
in a motor vehicle accident recently and her vehicle repairs will be completed shortly. She might
say that she had to change the route to work due to road repair, or she might say that she has to
ride in a car pool to work and the driver has a temporary problem that caused the delay. By
focusing on the problem itself, the employer has opened the door to understanding the root of
the problem, which may lead to various options for handling it.
(b) Be hard on the issues and soft on the people
In being hard on the issues, the Mediator will request documentation on damages, verify the
accuracy of numbers and confirm the evidence provided by both parties. At the same time, the
mediator will encourage the parties to be polite and cordial with each other and the mediator
will demonstrate the same qualities during mediation.
(c) Focus on interests
In negotiation, focus must be on interests rather than on positions. Hence the mediator should
help the parties to shift the focus from their positions to their interests.
(d) Create variety of options
The Mediator is required to facilitate generation of various options and selection of the option
most acceptable to the parties.
(e) Rely on objective criteria
When perceptions of the parties differ, in appropriate cases objective criteria like expert's
opinion, scientific data, valuation report, assessor's report etc. can be relied on by the parties to
examine the options and arrive at a settlement.
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