Advanced Mediation Working with Resistance Trainer Nina

Advanced Mediation Working with Resistance Trainer: Nina Meierding, MS, JD Negotiation and Mediation Training Services Bainbridge Island, Washington nina@meierding. com www. mediate. com/ninameierding

IMPEDIMENTS and OBSTACLES

Inadequate Information n Insufficient knowledge to make an informed decision n Can be a source of resistance for the advocate/attorney/parent/district personnel

Mismanagement of Expectations n Higher expectations than could be supported by objective analysis n May have occurred through friends, social network, media, attorney, family

Principle n Underlying moral or value-based position that prevents someone from making a concession that would go against his or her belief

Externalities n n ”Away from the table” factors which impact the ability or desire to settle Often factually or legally unrelated to the current dispute

Disagreement About Law/Facts n Differing good faith opinions as to the legal or factual merits

Inability to Seek Closure n Caught in the cycle of conflict n Unable to see self in other roles n Reinforcement may be occurring for staying in the conflict

Machismo, Ego, Loss of Face n Concessions seen as: n n Weakness Betrayal Shameful Disappointing to larger group

Emotionality n Inability to cognitively process information in a productive way n High degree of emotional reactivity

Scarce Resources n Simply not enough to go around

Outcome Avoidance n Delaying the inevitable as long as possible n Stalling

Bias n Status quo bias n n Confirmation bias n n Keep things the way they are Giving more weight to statements that you agree with Reactive devaluation n Discredit the statement if you have distrust or dislike of the person/role delivering the message

Hidden Agendas n n Using “throw away issues” that distract from the negotiation Not being forthright about goals, interests, and intentions

Cognitive Overload n Too much information at one time n Too much reality testing at one time

Lack of Authority No access to the people who actually make the decisions n

Single Text Document n Providing a draft of an agreement too early in the negotiation, especially when there is reactive devaluation

What to Do? PROACTIVE STRATEGIES

Proactive Techniques n Separate sessions or joint sessions n Support person (friend, relative) n Life events and time of meeting during the day n Seating arrangement

More proactive techniques n n n Private break room Provide snacks and juices/soda/tea/coffee (think warm) Watch your tone and tempo. If the party is feeling pressured, slow down.

More proactive techniques n Positive consequences to immediately occur (Think behavior modification!) n Balance past and future-focused discussions n Utilize a team approach n Give them some control

And…even more proactive techniques Timing is key. n The right answer at the wrong time becomes the wrong answer. n The right technique at the wrong time becomes the wrong technique. n Tailor your negotiation strategies to the beginning stage, the middle stage, and the final stage of negotiation.

Impasse Strategies RESOLUTION

Anchoring n Anchoring to gain rather than loss Also known as framing n Sources of resistance n n Need to win / saving face/ ego Principle Mismanagement of expectations

Reframing n Reframing an issue Reframing toxic language n Sources of resistance n n n High emotionality Mismanagement of expectations Principle Ego, competitive personality

Reality Testing n BATNA/WATNA/MLATNA n Sources of resistance n n n Mismanagement of expectations Disagreement about law or facts Insufficient information to make informed decisions Scarce resources Outcome avoidance

Engagement n Mirroring Sensory Modality Matching Validation n Sources of resistance n n n High emotionality Lack of rapport Reactive devaluation Principle

Situational Rules of Fairness n Legal, Equitable, Needs based, Faith based n Sources of resistance n n Principle Good faith disagreement about merits of the case Mismanagement of expectations Emotionality

Separate Session n n Separating parties or groups at strategic (not stylistic) moments Sources of resistance n n n Reactive devaluation Pacing Timing Mismanagement of expectations Principle Emotionality

Outside Opinion n Objective criteria Independent viewpoint n Sources of resistance n n n Reactive devaluation Cognitive dissonance Mismanagement of expectations Insufficient information to make decision

Linkage n Simultaneous, not sequential, negotiation; “if/then” proposal n Sources of resistance n n Single text document Negotiation styles – multiprocessors Scarce resources Externalities

Unilateral concessions n n Making a concession in process, interests, information or substance Sources of resistance n n n Reactive devaluation Negotiation misfires – poor pacing/timing Emotionality

Unbundling n Breaking a broad topic or issue down into smaller parts. n Sources of resistance n n Avoidance of outcome Reactive devaluation Linear processing Cognitive overload

Temporary Agreement n Agreeing to a limited duration solution n Sources of resistance n n Inability to seek closure Outcome avoidance Inadequate information Externalities

Identify Priorities and Interests n Identify wants and needs n Sources of resistance n n Hidden agendas Emotionality Principle Externalities

Incubation n Take a break, schedule another session, and don’t push for resolution n Sources of resistance n n n Avoidance of outcome Emotionality Externalities

Ownership of Offers n n Either encourage individual buy-in or reduce accountability depending on source of resistance Sources of resistance n n n Externalities Poor concessions Reactive devaluation Principle Standards of fairness

Now and Future Focused n n Transition from discussion about the past to present and the future issue Sources of Resistance n n n Hidden agenda Emotionality Bias Outcome avoidance Inability to seek closure

Summary n n n Be proactive. Be aware of different levels of readiness. Analyze the source of resistance. Match the impasse-breaking technique to the specific source of resistance. Try it out! If it doesn’t work, re-evaluate and try again.