My February 4, 2019 post What if Mediation Science Originated in the Real World? sparked much useful comment. Many people said they regretted the deficiency of negotiation and mediation field research, but were dismayed that I offered no proposals for fixing it. How, they asked, do you generate large-scale, real-life negotiation data? So, may I now offer for your scrutiny what I believe could be a cost-efficient, valuable and (despite the difficulties) viable way to address the problem?

The need for better data

Current negotiation and mediation theory is based on the propositions expounded by and since Fisher & Ury’s Getting To Yes (1981). There have been many “laboratory” studies using students and trainees, as well as surveys and interviews by scholars and practitioners that have developed these established mediation theories. But there have been no large-scale field studies based on real-life mediations or negotiations that have subjected these existing generation-old theories to rigorous empirical testing.1)See: Building Negotiation Theory from Real-Life Negotiations by Professor John Lande, 2017 Journal of Dispute Resolution 53 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2901128

E-negotiating, online dispute resolution, hybrid processes and other factors have changed the way people negotiate and mediate in the 21st Century. Established theories may no longer be fully applicable. New field research in the real world could indicate better “getting-to-yes” theories. Some received wisdom could be blown out of the water by new real-life research. Some is simply not typical of the real world.2) See: Negotiation Planning and Preparation in Practice by Morton Lindholst (2014) at https://openarchive.cbs.dk/bitstream/handle/10398/9074/Morten%20Lindholst.pdf?sequence=1

The paucity of field data, specifically in mediation, was dramatically emphasised in a June 2017 Report by the American Bar Association’s Task Force on Mediator Techniques.3)https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/med_techniques_tf_report.authcheckdam.pdf  This US meta-study sought out field research on mediator actions and their effect on outcomes. The Task Force, comprising highly-experienced talent in dispute resolution, could only identify 47 studies, mostly related to court-connected mediations (where, unlike “free market” mediations, the presence of a researcher could be requested or required more easily). The results were largely inconclusive owing to the data’s limited scale and scope, and the uncoordinated nature of the studies.

Why this is not surprising

In mediation, as in negotiation more generally, parties are naturally reluctant to allow an unknown researcher to observe their confidential discussions – a stranger, sitting silently in the room, watching, listening, taking notes. This fly-on-the wall may have signed a non-disclosure agreement, but their presence is likely to raise the discomfort levels that are common at the start of many mediations.

This understandable reluctance is surely a key reason why there are practically no real-life large-scale mediation and negotiation studies. But as a result, scholars lack the credible data they need to develop new empirical theories that can improve mediation and negotiation processes and techniques and their success rates.

Crafting a solution

The crux of the problem does not appear to be resentment to research, but to the presence of a researcher who social psychologists would describe as “out-group”. In that case, what if the researcher were to be “in-group”? For example, a member of one party’s in-house business or legal team, or an associate of a professional firm representing one of the parties whose role is to observe, not participate. Associates, whether in-house or in a firm, are often present during mediations and negotiations, taking copious notes (that are rarely read), so why not systematically train them in more purposeful observational recording skills as a part of their career development?

Purposeful Observation. Businesses, Government agencies and professional firms often have organised tutoring or shadowing programmes for recently-qualified staff. They provide junior professionals with hands-on learning opportunities, encouraging them to accompany more experienced staff to depositions, negotiations, strategy sessions, corporate board meetings, conference calls and so on. Active, purposeful4)The value of purposeful practice is explained in detail in: Peak – How all of us can achieve extraordinary things, by Anders Ericsson & Robert Pool, Vintage/Penguin Random House 2016. and well-structured observation stimulates deep learning and the development of true professional competency. It enables learners to advance their knowledge, understanding and skills as well as their attitudes towards the situation being observed. Few professional development opportunities are as valuable as this.

Training. Observing the behaviour of mediators and negotiators, and recording those observed behaviours objectively in a set of coded parameters, requires specialist training. The training would need to be state-of-art, devised and coordinated by a carefully-selected international group of experts, and qualify under CPD and CLE programmes. Many of the 50 or more corporate counsel associations worldwide should see the value and be willing to support and promote such advanced trainings, as should many companies and professional firms. Coordinated training for recording observed behaviour in validated ways would help ensure consistent data.

Resistance. Even an “in-group” person recording behaviours may be objectionable to some being observed, if handled inappropriately. Mediators in particular. They should be assured that the criteria being coded are non-judgmental and anonymous. The “other party” would also ideally contribute a similar observer. Involving major dispute resolution service providers and scholars in the design and delivery of such research parameters may go a long way to assuaging concerns all round.

Parameters. Comprehensive and sophisticated, yet simple-to-use, coding parameters are needed to configure such trainings and the formats for recording data. In my February 4th post, I mentioned the field-based studies led by Professor Neil Rackham on selling techniques. That research format was based on initiating, reacting and clarifying observed behaviours during sales negotiations. This model appears relevant, with modifications, to mediating and negotiating any matter. Despite this, it is no easy task to configure the parameters and coding requirements, but well-studied performance indicators are available. It would be necessary to determine which behaviours to observe first, from a large number of possibilities. But the expertise is out there, so all of this should be achievable, borrowing from other disciplines.

Process. The behavioural recording interface could be a tablet/smart phone app or other interface that directly links into a central research database. It would need to be secure and bespoke, but once the parameters and functionality requirements have been determined, the app’s construction should not be technically difficult.

Funding. This project needs a financial plan and to be well-funded. Funding follows the prospect of payback. The commercial value of the Rackham research over recent decades is probably measurable in the billions, if not trillions of Dollars. The value of more effective mediation and negotiation techniques and processes based on real-life research could also be substantial. And if, from the start, the project is designed to enable real-life research not only into mediation but also negotiation, with associates trained to note the behaviours of their own teams while negotiating, new theories to improve existing practices could well emerge, and the cumulative value and impact could be huge. Allow me to sneak in a payback example: what if new real-life research strongly points to the achievement of better, faster, more sustainable outcomes from a typical bilateral deal negotiation when the parties engage a facilitator? This could spark new and revolutionary ways to negotiate. Once published, there could quickly be more mediators working in deal-making than in deal-mending because there are many more deals being made than disputes being resolved. Such a scenario is perfectly feasible. But it first needs to be established though credible field research.

Challenges. Large-scale, real-life, international research is certainly possible, but is not going to be easy. Rackham’s researchers observed 35,000 sales calls involving 10,000 sales people over 12 years in 23 countries. Most sales negotiations are quite straightforward, involving just two participants and a clear definition of success. In mediation and negotiation, however, there are many more variables, and success is often in the eye of the beholder. Inter-researcher reliability also needs to be assured, through excellent researcher training and in other ways. On the other hand, technology can greatly facilitate data recording, collection, analysis and interpretation, making it easier and faster when set up correctly, though getting the app design right is a formidable challenge in itself. As with any other great challenge, a salami-slice approach is called for, starting modestly and building up gradually. But a structured plan and process is possible, generating tremendous new opportunities.

If something must be done, the ingenuity, skills, energy and resources can be found. Or, as Seneca viewed challenges: “It is not because things are difficult that we do not dare; it is when we do not dare that they become difficult.”

The purpose of this post is to attract comment, new thoughts and a lively debate on this important subject from scholars, practitioners, corporate and other users, students, policymakers and anyone with a stake or interest in better mediation and negotiation. Please do take a moment to react, preferably openly through the Kluwer Mediation Blog, but if you prefer, direct to me (contact details at www.michaelleathes.com).


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References   [ + ]

1. See: Building Negotiation Theory from Real-Life Negotiations by Professor John Lande, 2017 Journal of Dispute Resolution 53 at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2901128
2. See: Negotiation Planning and Preparation in Practice by Morton Lindholst (2014) at https://openarchive.cbs.dk/bitstream/handle/10398/9074/Morten%20Lindholst.pdf?sequence=1
3. https://www.americanbar.org/content/dam/aba/administrative/dispute_resolution/med_techniques_tf_report.authcheckdam.pdf
4. The value of purposeful practice is explained in detail in: Peak – How all of us can achieve extraordinary things, by Anders Ericsson & Robert Pool, Vintage/Penguin Random House 2016.

5 comments

  1. A great idea Michael. We all benefit from your continuing thought leadership in this field. In my view, the richest version of such deep research would be designed to identify and distinguish between the characteristics and dispositions of the disputants at the moment when the mediator deploys a particular technique. In attempting to “fit the forum to the fuss”, courts and ADR providers tend to focus on the type of dispute and its supposed “ripeness”, while ignoring, overlooking or being unaware of the decision-makers’ attitudes, e.g. whether they are determined to fight on to the highest court in the land or just want it to be over so they can get on with their lives. A mediator’s awareness of such dispositions may strongly influence the choice of appropriate mediation technique.

  2. I enjoyed your article calling for trained observers collecting data in an organized fashion in order to advance toward more effective negotiation. We are regularly bombarded with anecdotal data at conferences, often inconsistent, and left to improvise as best we can utilizing our own instincts and base of experience in our daily practice.

    A practical suggestion: Use trained observers who are presented as assistants to the neutral, not associated with any party to the negotiation. They would be bound by the neutral’s pledge of confidentiality; be present in both joint and caucus sessions, and remain in the background, not participating verbally in any fashion. Full disclosure would be essential, and advance permission recommended to avoid embarrassment or awkwardness at commencement. This would be akin to permitting mediation certification candidates to observe mediations, which is part of the State of Florida’s scheme to attain certification. If the observer – and the research project – is presented as being associated with the mediator, and not tied to one of the parties, the chances are no objection would be lodged to prevent the project from going forward, at least in most cases.

    My sense is that any number of neutral provider organizations would be pleased to entertain a hosting role; especially if the venture were independently financed.

  3. In support of the need for comprehensive mediation field research

    There is a large methodological toolbox that negotiation and mediation researchers can draw upon, ranging from experiments, questionnaires, secondary data analysis; quantitatively coded documents, participant observation, historical analysis, dialectical analysis, interviews, conversational analysis, textual analysis, realistic simulations and in-field observations to mathematical modelling.
    While several leading researchers in our field (e.g., Druckman, De Dreu) have in the past (some as long ago as the 1970s) called for greater ‘triangulation’ in research methods, this has proved to be an illusive goal. Triangulation refers to the combination of diverse methods for the same research question. A rare example of ‘triangulated’ is the work of Graham (1993), who used a combination of fieldwork, interviews, laboratory simulations and videotaped observations of actual negotiations in a study on negotiation styles of business people in different countries.
    While the need is there to take mediation and negotiation research to the next level and while we have diverse methodologies available for this purpose, what remains are the not inconsiderable obstacles you refer to. Confidentiality is probably the easier one to manage. You and John Upchurch also make some excellent suggestions about options for gaining access. Mediators themselves could possibly be motivated to participate if one can offer ‘short cycle’ observation, i.e., they receive results in time in a way that they can use to improve their performance.
    Funding is likely to remain the chief obstacle and here the question is how one can show the benefits of field research to those with a real stake in improving the quality and effectiveness of mediation. Obvious candidates might be governments that support greater use of mediation to improve access to justice and lessen the burden of dispute resolution process on the public purse. Perhaps mediator training providers also. Above all, major companies should be prime sponsors of field research, motivated by the need to improve the quality of negotiation and mediation skills and processes, and to reduce litigation and arbitration uncertainties, inefficiencies and costs. If a diverse international funding circle can be put together, I have no doubt the interest of researchers in the field will be sparked and ways will be found to identify the most appropriate methodology for essential field research, and overcome concerns around confidentiality and practical challenges that will no doubt arise.
    References:
    Chertkoff J.M. & Esser J.K. (1976) A review of experiments in explicit bargaining. J. Exp. Soc. Psychol. 12(5): 464–486
    De Dreu C.K.W. & Carnevale P.J. (2005) Disparate methods and common findings in the study of negotiation. Int. Negot. 10:193–203
    Druckman D (2005) Doing research: methods of inquiry for conflict analysis. Sage Publications, Thousand Oaks
    Graham J.L. (1993) ‘The Japanese negotiation style: characteristics of a distinct approach’ Neg. Jnl. 9(2):123–141.
    Rubin J.Z. & Brown B.R. (1975) The social psychology of negotiation. Academic Press, New York

  4. Michael, this is a truly visionary idea to generate more real life negotiation / mediation data. The challenge is that we need large amount of data to draw conclusive findings. We could call for a pledge by several business for collecting data to improve negotiation and mediation processes to leave less money on the table. A collective commitment could generate the amount of data needed to obtain credible results!

  5. Thank you for your article Michael which makes a lot of sense. One could replace Mediation with Negotiation and the article and its recommendations would stand. It inspires new questions, some of them raised by previous commentators: could corporate sponsors step in to help ignite more research. Perhaps one way to go about that is to identify which corporate executives fit the definition of “Sponsor” (Susskind/Movius: Built to Win), high-level in-company executives that see the value and are believers in sound negotiation and mediation practices. If they are willing to open up the discussion in-company it creates space for researchers to start designing. That design is a back and forth between what to choose to measure (as you point out, a challenge, but different studies will opt for different approaches and through peer-to-peer feedback winning methods will emerge) and what is available to measure, which will be different by company depending on what type of negotiations/mediations they offer for observation (and financial sponsorship to the research community).

    I also believe it is interesting to approach this from a public sector perspective: how could government agencies be convinced to be open, allowing observation of their negotiations in a structured manner? At Negotiation & Public Service, we work with government actors and I think there are a number of ways in which observation and data collection is in fact easier than in the corporate sector, including in getting the other party’s approval for observers to be present. In the Netherlands, for example, negotiation but especially public mediation are increasingly on the agenda and there is an emerging central government agenda supporting best practices…

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