NEGOTIATION AND BARGAINING IN MEDIATION

Though the words Negotiation and Bargaining are often used synonymously, in mediation there
is a distinction. Negotiation involves bargaining and bargaining is part of negotiation. Negotiation
refers to the process of communication that occurs when parties are trying to find a mutually acceptable
solution to the dispute.  Negotiation may involve different types of bargaining.
What is Negotiation?
         Negotiation is an important form of decision making process in human life.  Negotiation is
communication for the purpose of persuasion. Mediation in essence is an assisted negotiation process.
In mediation, negotiation is the process of back and forth communication aimed at reaching an
agreement between the parties to the dispute. The purpose of negotiation in mediation is to help the
parties to arrive at an agreement which is as satisfactory as possible to both parties.  The mediator
assists the parties in their negotiation by shifting them from an adversarial approach to a problem
solving and interest based approach. The mediator carries the proposals from one party to the other
until a mutually acceptable settlement is found. This is called 'Shuttle Diplomacy'. Any negotiation
that is based on merits and the interest of both parties is Principled Negotiation and can result in
a fair agreement, preserving and enhancing the relationship between the parties. The mediator
facilitates negotiation by resorting to reality-testing, brainstorming, exchanging of offers, breaking
impasse etc.

Why does one negotiate?
a. To put across one's view points, claims and interests.
b. To prevent exploitation/harassment.
c. To seek cooperation of the other side.
d. To avoid litigation.
e. To arrive at mutually acceptable agreement.
NEGOTIATION STYLES
1)  Avoiding Style Unassertive and Uncooperative: The participant does not confront
the problem or address the issues.

2)  Accommodating Style Unassertive and Cooperative: He does not insist on his own interests
and accommodates the interests of others. There could be an element
of sacrifice.
3)  Compromising Style Moderate level of Assertiveness and Cooperation: He recognizes
that both sides have to give up something to arrive at a settlement. He
is willing to reduce his demands. Emphasis will be on apparent equality.
4)  Competing Style Assertive and Uncooperative: The participant values only his own
interests and is not concerned about the interests of others. He is
aggressive and insists on his demands.
5)  Collaborating Style Assertive, Cooperative and Constructive: He values not only his
own interests but also the interests of others. He actively participates
in the negotiation and works towards a deeper level of understanding
of the issues and a mutually acceptable solution satisfying the interests
of all to the extent possible.
What is Bargaining?
Bargaining is a part of the negotiation process. It is a technique to handle conflicts.  It starts
when the parties are ready to discuss settlement terms.
TYPES OF BARGAINING USED IN NEGOTIATION
There are different types of Bargaining. Negotiation may involve one or more of the types of
bargaining mentioned below:
(i) Distributive Bargaining
(ii) Interest based Bargaining.
(iii) Integrative Bargaining.
(i) Distributive Bargaining: is a customary, traditional method of bargaining where the parties
are dividing or allocating a fixed resource (i.e., property, money, assets, company holdings, marital
estate, probate estate, etc.).  In distributive bargaining the parties may not necessarily understand
their own or the other's interests and, therefore, often creative solutions ffor settlement  are not
explored.  It could lead to a win-lose result or a compromise where neither party is particularly
satisfied with the outcome.  Distributive bargaining is often referred to as "zero sum game",
where any gain by one party results in an equivalent loss by the other party. The two forms of
distributive bargaining are:

Positional Bargaining:  Positional Bargaining, is characterized by the primary focus of the
parties on their positions (i.e., offers and counter-offers).  In this form of bargaining, the parties
simply trade positions, without discussing their underlying interests or exploring additional
possibilities for trade-offs and terms.  This is the most basic form of negotiation and is often the
first method people adopt.  Each side takes a position and argues for it and may make concessions
to reach a compromise.  This is a competitive negotiation strategy. In many cases, the parties
will never agree and if they agree to compromise, neither of them will be satisfied with the
terms of the compromise.
Example: Varun and Vivek are quarrelling in a room. Varun wants window
open Vivek wants it shut.  They continue to argue about how much to leave open
- a crack, halfway, three quarter way.
Rights-Based Bargaining: This form of bargaining   focuses on the rights of parties as the
basis for negotiation.  The emphasis is on who is right and who is wrong.  For example, "Your
client was negligent.  Therefore, s/he owes my client compensation."  "Your client breached the
contract.  Therefore, my client is entitled to contract damages."
Rights-based bargaining plays an important role in many negotiations as it analyses and defines
obligations of the parties.  It is often used in combination with Positional Bargaining (e.g., "Your
client was negligent, so she owes my client X amount in compensation.  )  Rights-Based Bargaining
can lead to an impasse when the parties differ in the interpretation of their respective rights and
obligations.
Negative consequences of Distributive Bargaining are:
(a) By taking rigid stands the relationship is often lost.
(b) Creative solutions are not explored and the interests of both parties are not fully met.
(c) Time consuming.
(d) Both parties take extreme positions often resulting in impasse.
(ii) Interest-Based Bargaining:  A mutually beneficial agreement is developed based on the facts,
law and interests of both parties.  Interests include needs, desires, goals and priorities.  This is a
collaborative negotiation strategy that can lead to mutual gain for all parties, viz., "win-win".  It
has the potential to combine the interests of parties, creating joint value or enlarging the pie.
Relief expands in interest based bargaining. It preserves or enhances relationships.  It has all the
elements of principled negotiation and is advised in cases where the parties have on-going
relationships and / or interests they want to preserve.

Example:  The story of two sisters quarrelling over one orange. They decide to
cut the orange in half and share it, although both are not happy as it would not
adequately satisfy their interest.   The mother comes in to enquire what is the real
interest of each one.  One says that she needs the juice of one orange and the other
says that she needs the peel of one orange.  The same orange could satisfy the
interest of both parties.  Both sisters go away happy.
Three steps in interest-based bargaining
There are three essential steps in interest-based bargaining.
(a) Identifying the interests of parties.
(b) Prioritizing the parties' interests.
(c) Helping the parties develop terms of agreement/settlement that meets their most important
interests.
(iii) Integrative Bargaining: Integrative Bargaining is an extension of Interest Based Bargaining. In
Integrative Bargaining the parties "expand the pie" by integrating the interests of both parties
and exploring additional options and possible terms of settlement.  The parties think creatively
to figure out ways to "sweeten the pot", by adding to or changing the terms for settlement.
To continue the earlier example of Varun and Vivek quarrelling in the room.
Ashok comes into the room and enquires about the quarrel.  Vivek says that the
cold air blowing on his face is making him uncomfortable.  Varun says that the
lack of air circulation is making the room stuffy and he is uncomfortable.  Ashok
opens the window of the adjoining room and keeps the connecting door open.
Both parties are happy.  The cold air is not directly blowing into Varun's face
and Vivek is comfortable as there is adequate air circulation in the room.
As the interests and needs of both parties have been identified, it is
easier to integrate the interests of both parties and find a mutually
acceptable solution.

Another example of integrative bargaining.  A car salesman may reach an
impasse with a customer on the issue of the price of a new car.  Instead  of
losing  the  deal,  the  car salesman will offer to throw in fancy leather seats as
part of the deal while maintaining the price on the car.  If necessary the salesman
may also agree to help the customer to sell his old car at a good price.
The fancy leather seats and the offer to help in the sale of the old car
are integrative terms because they result from an exploration of whether
additional terms or trade-offs could be of interest to the customer.
Similarly, the Mediator can help parties avoid or overcome an impasse
by actively exploring the possibility and desirability of additional terms
and trade-offs.
NOTE :
Position: A position is a perception ('my boss is cruel and indifferent')
or a desired outcome ('My boss should meet with me once a day to
talk'). The claim or demand, itself, is a position.
Interest: An interest is a person's true need, concern, priority, goal
etc..  It can even be intangible (not easily perceivable) e.g. respect,
loyalty, dependability, timing, etc. An interest is what lies beneath and
drives a person's demands or claims.