Role of Mediator

8/13/2019 Role of Mediator

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Negotiation & Mediator - TheRole of Negotiator & Mediator

by

Assoc. Prof. Dr. Abdul Rani bin Kamarudin

Lecturer

Ahmad Ibrahim Kulliyyah of Laws

(Legal Practice Department)

IIUM

Date: 5th January 2013,

Time : 2.30pm - 4.00pm

Venue: Pusat Teknologi Maklumat (PTM), UKM Bangi.


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Negotiation

Giving & taking concessions;

To achieve solution i.e. discuss sticking points ordamages;

To maximise gains.


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Role of Negotiator

Requires skills and vigilant, and to display sufficient ability in achieving onesinterest

i.e. like a car driver when negotiating a bend or corner;

Proper mix between the competitive and cooperative negotiation strategy;

Conceding to points which are of no great concern & to concentrate on the one that are

by taking into account the followings tips & tricks:

1. Start high if you are selling, and low if you are buying;

2. Give just a little concession at a time than a large amount of single concession;3. Never give a concession without one in return;

4. Exchange little for much;

5. Need to know limits, goals and probable bargaining range;

6. May require several negotiations;

7. What is clientsinstruction and authorisation?8. What is clientsbest interest?

9. Know the facts/law why concession given is little or not possible, or why the opponent

must concede to the concession asked for.


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Adversarial/Competitive/ Hardball / Hard Talk/ Combative

Negotiation Strategy Part 1

To induce the opponent to lose confidence in himself or his case so as

to exact substantial concessions from the opponent by reducing hisexpectations and for him to accept less than he otherwise would.

Its characteristics are high opening demands, and maintaining it

throughout and only making infrequent but small concessions to induce

unilateral concessions from the opponent.

Manipulative in its approach, designed to intimidate the opponent into

submission through exaggeration, ridicule, threat, bluff, and accusation

to create high levels of tension and pressure on the opponent. e.g. of

threatweve been talking for hours without progress.

Creating enough pressure and tension to induce and emotional reactionand a reduction in expectations in the opposing party.

If pressure is excessive or is maintained too long, it may backfire.


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Adversarial/Competitive/ Hardball / Combative/ Hard Talk

Negotiation Strategy - Part 2

Downside

The goal is victory - win lose situationwinning is everything;

Generates a marked increase in tension and mistrust - opponent

either capitulate or walk out (deadlock);

Creating the appearance of more disagreement and losing sight ofthe objective merits of the case (underlying issues) and

generating impasse;

Involves taking or digging into position than common interest or

actual needs; Rate of impasse is significantly higher;

Damage to long term relationships that depend on mutual trust.


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Cooperative/ Problem Solving

Negotiation StrategyPart 1

The goal is agreement; What is fair and justequitable;

Common interest and actual or basic needs than taking or

digging into positions thus seeing opportunities for

solutions;

Win-win situation through give and take; and

Develop trust and maintained future relations.


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Cooperative/ Problem Solving

Negotiation StrategyPart 2

Downside

Little emphasis if any on position by too easily making

concession for the sake of settling;

May be taken as sign of weakness and indecisiveness by

the opponent who adopts the competitive approach who is

always battle ready to take advantage.


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Negotiation StrategyWhich is better, competition

or cooperation?Part 1

Quran chapter 28 verses 23-28.

And When he (Moses) arrived at the watering (place) in Madyan, he

found there a group of men watering (their flocks), and beside them he

found two women who were keeping back (their flocks). He said:

What is the matter with you? They said: We cannot water (our

flocks) until the shepherds take back (their flocks), and our father is anold man.So he watered (their flocks) for them; then returned back to

the shade, and said: Omy Lord! Truly I am in (desperate) need of

any good that Thou dost send me!Afterwards, one of the two came

(back) to him walking bashfully. She said: Myfather invites thee thathe may reward thee for having watered (our flocks) for us.So when

he came to him and narrated the story, he said: Fear thou not: (well)

hast thou escaped from unjust people.


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Quran chapter 28 verses 23-28.

Said one of the (damsels); Omy (dear) father! engaged him

on wages: truly the best of men for thee to employ is the (man)

who is strong and trusty. He saidIintend to wed one of these

my daughters to thee on condition that thou serve me for eight

years, but if thou complete ten years, it will be (grace) from

thee and I intend not to place thee under a difficulty. Thou will

find me, indeed if God wills, one of the righteous.He said:

Be that (the agreement) between me and thee, whichever of

the two terms I fulfill, let there be no ill will to me. Be God a

witness to what we say.


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Mosessstrength: bachelor, strong and trustworthy.

Mosessweak points: fugitives, homeless & jobless.

The old man's strength: has shelter and jobs to offer, and two unmarried

daughters. The old man weaknesses: Old and badly in need of a strong and

trustworthy man to cater the flocks, and to safeguard his familysinterest.

Opportunities: The old man gets a strong and trustworthy man who willwork for him as his in law by marrying to one of his two daughters. For

Moses, a shelter/ home in the form of father in law, wife and a job.


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Cooperative style is most suited where both sides have strong motives for

settling.

Competitive style is suited where both sides aim to get the most possible.

Why does adversarial negotiation seem to dominate how we negotiate?

- ego/ self esteem

- macho

- self interest

- more gain more commission

- easier and natural especially the one that has the upper hand e.g. creditors


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Concluding Negotiation

Objectives should be achieved as far as possible byidentify their underlying needs.

Comprehensive;

Clear;

Settle;

Enforceable.


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A Mediator A mediator only mediate and is not a negotiator or negotiates;

Only a mediator may mediate; Malaysian Bar Council which runs the Malaysia Mediation Centre

(MMC) defines a mediator as any person who is neutral, impartial,

independent and accredited by MMC;

MMC accreditation will be accorded to persons who demonstratethat they have achieved & maintain the prescribed level of

competence in the process of mediation;

A person who satisfactorily completed a 40 hour mediation skills

training workshop conducted by the Bar Council Malaysian

Mediation Centre and underwent a simulated role play observed byone or more assessors approved by the Accreditation Committee of

MMC may apply to be empanelled as a Mediator in MMC;

Have insurance coverage.


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What is Mediation? It is a completely voluntary non binding and private dispute

resolution structured process;

Parties may terminate the mediation process at any time A mediator will not make a ruling or finding unless requested by all parties

involved.

No settlement reached until it has been reduced into writing and

signed by the parties (Settlement Agreement) Parties are encouraged to cooperate in good faith to resolve dispute;

The process is confidential and without prejudice. Disclosures or

admissions by parties shall not leave the four walls of the mediation

venue should the parties failed to reach any settlement, No

unauthorised Audio visual recordings ;

A neutral third party elicits the partiescooperation to discuss their

dispute openly and facilitates their understanding.


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Why Mediation as a First Option?

Non binding and voluntary; Parties are the bosses and they not the mediator that

determine for themselves how their disputes should be

resolved;

Cost effective (cheaper) & time saving, each party bears his

own cost;

Informal, flexible, privacy and non adversarial;

Good business etc relations are maintained;

Mediation works best if parties have a genuine desire to

resolve differences.


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Arbitration (private judge)

privacy, the tribunal is chosen by theparties, informal, [speed and

efficiency, lower costs?]

Court

(public judge)

Mediation private, voluntary,and if agreement is reached, it

is enforceable as a contract.(parties are the sovereign)


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Role of Mediator

To facilitate the process of mediation expeditiously and impartially.

To maintain confidentiality unless expressly authorised to divulge.

A mediator will not make a ruling or finding unless requested by all parties

involved.

Any settlement reached is to be recorded in writing and signed by them

voluntarily. A Mediator is a neutral third party who elicits the parties cooperation to

discuss their dispute openly and facilitates their understanding.

Encourages parties to put aside their legal rights (position) for a moment

and to focus on their relationship (actual or basic needs). Parties reach a settlement on their own. A Mediator assists parties to find

common ground (underlying objectives) and from there to negotiate and

achieve as mutually satisfactory solution.


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Role of Mediator

A Mediator does not offer advice, give solution (may suggest solution),make recommendation or determine for the parties on how the

disputing parties should resolve their disputes. Solution comes from the

parties in dispute unlike a conciliator who may give or make

recommendations and formulate solutions.

Is authorised to conduct joint and separate meetings with the Parties.

May obtain expert or technical advice but parties must agree first to

pay for the expenses.

May end the mediation if he is in the opinion that the mediation would

not contribute to a resolution of dispute between the Parties.


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What are Needs & Interests

Needs are the partiesultimate goal. Interests are partiesactual needs and wants negotiators should identify

their underlying needs.

Common grounds by highlighting common grounds, the negotiator or

Mediator reinforces or reassures that negotiation is progressing forward. One will perceive that he needs a car but the underlying need is for

transport which could be resolved by motorcycle, car sharing, taking a lift

etc.

Mediator or negotiator (cooperative strategy) should generate options tocater for the needs of the other party, and elicits solutions from the other

party.


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Between Interest Based & Rights?

Martha v Sallyis a leading case used as a classic illustration in

mediation training by mediation trainer on interest versusrights.

Two young sisters fighting over one orange. The frustrated

mother solved the problem by cutting the orange into half. The

first sister ate her half and threw away the rind. The secondsister threw away her fruit and used the rind for baking. In

actual fact, the first sister wanted the pulp to make the juice

whereas the other sister wanted the rind to make the cake. If

the mother had taken the sistersinterest (actual needs) ratherthan their rights (position), both of them would have obtained

the maximum benefit from the orange.


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ImpasseParties are tired, exhausted.

Sticking to position, rights rather than interest or actual needs.Too egoistic to make compromisenegotiator adopts a competitive strategy.

To overcome impasse negotiator or mediator should break issues into

smaller parts, resolve difficult issues later and deal with the simpler ones.

Take a break.Mediator must be a good listener by summarising, showing empathy,

checking the facts with the party, establishing rapport, reading partiesgestures.

Mediator's position is weakunlike a judge and arbitrator hence has to work

harder. If parties try to walk out, mediator has to persuade them to come in and

resume.


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Thank you

Main References Don Peters (1985) Negotiation.

Materials from Mediation Skills Training Workshop provided by the

Bar Council Malaysia Mediation Centre.

Dr Dale Bagshaw - Mediation Training Manual, University of SouthAustralia.

Ibnu KatsirStories of the Prophets.

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Role of Mediator

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