THE VALUE OF TIME, PATIENCE AND PERSEVERANCE IN NEGOTIATIONS

I recently mediated two very difficult disputes in which not only did the disputants themselves believe that any resolution was eternally elusive (not uncommon), but even I, as mediator had very little hope (very uncommon)! It appeared that the parties were about to terminate mediation on numerous occasions, when one or the other stormed out of the mediation session, threatening onerous law suits on their way out.

Ultimately, to my astonishment, both disputes were not only resolved to the satisfaction of the parties, but relationships were restored to some extent as well. In my post-mediation debrief, I realized that key factors that helped to advance resolution on these seemingly intractable conflicts between apparently intransigent disputants, was time, patience and perseverance.

Consider the negotiation between a buyer and prospective seller over the purchase of a piece of real estate. The seller was resisting any offer the buyer was proposing despite displaying a clear intent in wanting to sell.The buyer perceived the seller to be greedy, unreasonable and unrealistic, and assumed her motivations were entirely money driven. The negotiations were at an impasse. The buyer, faced with this impasse, was at his wits end and about to walk away from this deal.

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DID ENGLAND SLEEP - THE SCOTTISH INDEPENDENCE REFERENDUM IN A NEGOTIATION CONTEXT

INTRODUCTION

Today, the Scottish people go to the polls to vote a "YES or "NO" on the secession of Scotland from the United Kingdom. Either outcome is wrought with serious problems. If the vote is "NO", a large portion of the Scottish population will feel resentful knowing that this might be the last opportunity for generations, and demonstrations and riots are not out of the question. If the answer is "YES", there will be resentment on the part of England. This will be very serious for Scotland too, as there will still be many complex issues to negotiate with a resentful Westminster as a partner.

These issues will include; currency union; banking and financial services; Scotland's responsibility to the UK's national debt; National Health; European Union membership (currently Scotland is a member only by England's shirttails); borders and immigration; monarchy; and defense (involving amongst other things, the UK Trident nuclear deterrent currently based in Scotland).

These negotiations are likely to take a minimum of two years and will be acrimonious and messy. Did England sleep instead of preempting and possibly averting the current crisis?

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NEGOTIATION, THE CASE OF THE PRISONERS' DILEMMA AND THE POWER OF EFFECTIVE COMMUNICATION

THE CLASSIC CASE OF THE PRISONERS' DILEMMA

Ganavia and Gezlique have been arrested for robbing the Mamonia Savings Bank and placed in separate isolation cells. Both care much more about their personal freedom than about the welfare of their accomplice. A clever prosecutor makes the following offer to each. "You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice does serious time. Likewise, if your accomplice confesses while you remain silent, they will go free while you do the time. If you both confess I get two convictions, but I'll see to it that you both get early parole. If you both remain silent, I'll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning."

The "dilemma" faced by the prisoners is, that whatever the other does, each is better off confessing than remaining silent. But the outcome obtained when both confess is worse for each than the outcome they would have obtained had both remained silent.

This dilemma is created by the fact that neither prisoner can communicate with the other, and therefore there is no trust or strategy of collaboration. This leads to a sub-optimal outcome of both being convicted and sentenced to a long time in prison whereas had they been able to communicate, build trust and devise a strategy of collaboration they could have both received far lighter sentences.

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DISPUTE RESOLUTION - CHOOSING THE RIGHT PROCESS

Whether you are an attorney advising your client, a company or an individual embroiled in a dispute, it is necessary to understand the different processes of dispute resolution and determining which is the right process for your particular situation.

In ascending order of cost, time and adversity, the various processes for dispute resolution are: Negotiation; facilitative mediation; evaluative mediation; arbitration; and litigation. As we move along this continuum from negotiation towards litigation, the process becomes more costly, takes longer, and moves from diplomacy towards outright war.

In this column, I will address only the cardinal points on the continuum which are mediation, arbitration and litigation. I will explain the processes and when it is appropriate to use each.

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A SYSTEMATIC APPROACH FOR NEGOTIATING AGREEMENTS

INTRODUCTION

As long as we are active participants in the world around us, be it socially, professionally, commercially or diplomatically, we are always negotiating. At home it might only be about what movie to watch, and with friends it might be about where to meet for dinner - easy and low risk negotiations to be sure, and often, in these social contexts, we are not even aware that we are negotiating.

However, when we get to the professional, commercial or diplomatic context, negotiations assume a significantly more conscious and deliberate effort due to the potential opportunities and high risks involved. They may be partnership agreements, or about professional services and fees, or perhaps the sale and delivery of goods. They may even involve nuclear non-proliferation treaties or serious international boundary disputes.

In these situations, we are very aware that we are negotiating and take it very seriously. Good negotiators will typically have a systematic methodology that they apply regardless of what the context and object of the negotiation might be. In this column, I would like to share with you a basic systematic approach that you can apply to any negotiation you are currently involved in, or may be in the future.

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NEGOTIATION LESSONS FROM THE RECENT CRIMEAN CRISIS

BACKGROUND

How it looked from the US perspective: A few weeks ago when the Ukrainian President fled the Ukraine and the opposition government seized power, Russian troops moved to take control of the Crimean Peninsula. The overarching issue was a tug-of-war between the European Union and Russia over the allegiance of the Ukraine, which led to extreme protesting and eventual civil war-like violence. Russia's move was immediately interpreted as an act of aggression with the intent to occupy the Ukraine much the same as they did in Czechoslovakia in 1968 (which was a reaction to economic reforms and decentralization of administrative authority taking place in Czechoslovakia at the time, under Alexander Dubcek. This was not well received by neighboring and virulently communist Russia, who had dominated Czechoslovakia since WWII). Russia's move into the Crimean Peninsula was even compared by some, to Hitler's taking of the Sudetenland in 1938.

These historical comparisons and relative assumptions are understandable, and to be sure, there do appear to be compelling parallels. Nevertheless, upon diligent examination and understanding of geo-political context and history of the relationship and disputes one sees that there is really no comparison at all. In fact, it is abundantly clear that Putin's motivations were neither the same as Brezhnev in Czechoslovakia in 1968 nor Hitler's with the Sudetenland in 1938 (an essay in its own right and beyond the scope of this column). Therefore acting upon these assumptions impulsively, without the necessary thought and analysis might be futile at best and dangerous at worst.

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WHY CAN MEDIATION WORK EVEN WHEN NEGOTIATIONS FAIL

INTRODUCTION

Very often, in both civil disputes and international conflict, we find that after all efforts in negotiation have been exhausted and have failed dismally, the dispute goes to mediation where it is magically resolved. Since mediation is defined as "assisted and facilitated negotiation", one must ask what is it about the process of mediation, and the skills of the mediator that can help to resolve a dispute that appeared intractable during negotiations? What additional ingredients are added to the mix that were missing before mediation and appeared to make all the difference? Why and how do the dynamics change once a third neutral party is introduced?

Although there is a range of forces at work and a variety of techniques and disciplines at play when a skilled mediator enters the fray, I will highlight but a few in this column. My intent is to educate the discerning public and to instill confidence on the part of the consumer, in mediation, as a very viable, effective and efficient alternative in the dispute resolution process continuum.

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