Conflict

Management UNIT 3 MEDIATION, NEGOTIATION, AND

CONCILIATION

Structure
3.1 Learning Objectives
3.2 Introduction
3.3 Mediation
3.3.1 Characteristics of Mediation
3.3.2 Advantages of Mediation
3.3.3 What can be Mediated
3.3.4 What cannot be Mediated
3.3.5 Convening for Mediation
3.3.6 Training of Mediators
3.3.7 Ethics for Mediators
3.4 Negotiation
3.4.1 Seven pillars or Elements of Negotiation
3.4.2 Qualities of a Good Negotiator
3.4.3 Productive Negotiation
3.4.4 Mixed Motive Exchange
3.4.5 Winner’s Curse
3.4.6 Interest Based Negotiation
3.4.7 Integrative Negotiation
3.4.8 Distributive Negotiation
3.4.9 BATNA – WATNA
3.4.10 Purpose of Analysis
3.4.11 Quality of Analysis
3.5 Conciliation
3.5.1 Introduction – how it is done
3.5.2 When it is used
3.5.3 Advantages of Conciliation
3.5.4 Difference Between Arbitration and Conciliation
3.6 Let US Sum Up
3.7 Keywords
3.8 Bibliography and Selected Readings
3.9 Check Your Progress – Possible Answers

3.1 Learning Objectives

After studying this unit, you should be able to
• Explain the concept of mediation, its characteristics and advantages
• Discuss various aspects of negotiation
• Describe the meaning, use and advantages of conciliation
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 Mediation,
3.2 INTRODUCTION Negotiation, and
Conciliation
Mediation, negotiation and conciliation are important methods of alternative
dispute resolution that allow the parties at dispute to effectively participate in
resolving their disputes with minimal support or intervention of the third
party. These methods are informal, yet structured, and have the potential to
create long term and harmonious resolution of disputes. Formal adjudication
of disputes have their own pitfalls. These court centric methods are often
intimidating and exclusionary with parties having no or little control or say.
In India, court centric adjudication takes years and decades to conclusively
resolve disputes.

This formal, and largely colonial, framework of adjudication has the parties
at the receiving end with court and lawyers at the apex in the structure of
power. The huge pendency before courts adds to the woes of litigants and
every new case puts an additional burden on the judicial system driving it to
focus more on managing quantity and less on delivering quality. As
alternative methods of dispute resolution, mediation, negotiation, and
conciliation, need to be popularized and used for multiple benefits to their
users, the judicial system, and society. The purpose of this unit is to
familiarize the readers with these methods and encourage them to use them
and help in imbedding them in society for participation and benefit of the
common person.

3.3 MEDIATION
Mediation is a voluntary and party-centered process of dispute resolution. It
is structured negotiation, involving a neutral party (the mediator) to assist the
parties at dispute in amicably resolving their dispute. The mediator uses
specialized communication and negotiation techniques to resolve disputes. In
mediation, the parties retain the right to decide for themselves whether to
settle a dispute and with what terms of settlement. In this process, the
mediator facilitates communications and negotiations between the parties.
However, it is the parties that always have the control over the outcome of
the dispute.

3.3.1 Characteristics of Mediation

For a better understanding of mediation, let us consider its various
characteristics mentioned below:

1. Impartial Third Party: Mediation is a process that has an impartial and

neutral third person to facilitate the resolution of disputes without
suggesting what could be the solution. The mediator remains impartial,
independent, detached and objective throughout the mediation process.
In mediation, the mediator assists the parties in resolving their dispute.
The mediator is a guide who helps the parties to find their own solution
to the dispute. The mediator's personal preferences or perceptions do not
have any bearing on the dispute resolution process.

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Conflict 2. Voluntary: The parties retain the right to decide for themselves whether
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to settle a dispute and the terms of settlement of the dispute. Even if a
court has referred a dispute for mediation or if mediation is required
under a contract or a statute, the parties decide whether to go for
settlement and with what terms. This right of self-determination is an
essential element of the mediation process. It results in a settlement
created by the parties themselves and is therefore acceptable to them.
The parties have ultimate control over the outcome of mediation. Any
party may withdraw from the mediation proceedings at any stage before
its termination and without assigning any reason.

3. Party-centred Process: The parties, and not the neutral mediator are the
focal point of the mediation process. Mediation encourages active and
direct participation of the parties in the resolution of their dispute.
Though the mediator, advocates, and other participants also have active
roles in mediation, the parties play the key role in the mediation process.
They are actively encouraged to explain the factual background of the
dispute, identify issues and underlying interests, generate options for
agreement and make a final decision regarding settlement. Parties to
mediation proceedings are free to agree for an amicable settlement, even
ignoring their legal entitlement or liabilities. If the parties want,
mediation in a particular case, need not be confined to the dispute
referred, but can go beyond and proceed to resolve all other connected or
related disputes also.
4. Structured and Formalised yet Flexible: Though mediation process is
informal, which means that it is not governed by the rules of evidence
and formal rules of procedure, it is not a casual process. Mediation
process itself is structured and formalized, with clearly identifiable
stages. However, there is a degree of flexibility in following these stages.
5. Assisted Negotiation Process: Mediation addresses both the factual and
legal issues and the underlying causes of a dispute. Thus, mediation is
broadly focused on the facts, law, and underlying interests of the parties,
such as personal, business/commercial, family, social and community
interests. The goal of mediation is to find a mutually acceptable solution
that adequately and legitimately satisfies the needs, desires and interests
of the parties.
6. Speedy and Effective: Mediation provides an efficient, effective,
speedy, convenient and less expensive process to resolve a dispute with
dignity, mutual respect, civility and active participation.
7. Facilitative and Evaluative: In Mediation, the mediator works together
with parties to facilitate the dispute resolution process and does not
adjudicate a dispute by imposing a decision upon the parties. A
mediator's role is both facilitative and evaluative. Mediators facilitate
when they manage the interaction between the parties, encourage and
promote communication between them and manage interruptions and
outbursts by them and motivate them to arrive at an amicable settlement.
Mediators evaluate when they assist each party to analyse the merits of a
claim/defence, and to assess the possible outcomes at trial.
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8. Specialised Communication Skills: Mediators employ certain Mediation,
Negotiation, and
specialised communication skills and negotiation techniques to facilitate Conciliation
a productive interaction between the parties such that they can overcome
negotiation impasses and find mutually acceptable solutions.

9. Private and Confidential: Mediation is a private process and is not

open to the public. Mediation is also confidential in nature. The
statements made during mediation cannot be disclosed in civil
proceedings or elsewhere without the written consent of all parties. Any
statement made or information furnished by either of the parties, and any
document produced or prepared for and during mediation is inadmissible
and non-discoverable in any proceeding. Any concession or admission
made during mediation cannot be used in any proceeding. Further, any
information given by a party to the mediator during the mediation
process, is not disclosed to the other party, unless specifically permitted
by the first party. No record of what transpired during mediation is
prepared. The mediator cannot be called upon to testify in any
proceeding or to disclose to the court as to what transpired during the
mediation. In the event of failure to settle the dispute, the report of the
mediator does not mention the reason for the failure. The report will only
say "not settled".
10. Binding Nature of Settlement: Any settlement reached in a case that is
referred for mediation during the course of litigation is required to be
reduced to writing, signed by the concerned parties, and filed in Court
for the passing of an appropriate order. A settlement reached at a pre-
litigation stage is a contract, which is binding and enforceable between
the parties.

3.3.2 Advantages of Mediation

The following are the key advantages of mediation:

1. Parties’ Control and Convenience: In mediation, parties have the

control over the terms of settlement and their scope. This means that the
terms of reference or issues can be limited or expanded during the
proceedings. The parties also have the control over outcomes of
mediation. Either party can quit mediation at any stage of its process.
The entire process of mediation is adopted as per the convenience of the
parties. It can be modified to suit the requirements of each case and
parties. Flexible scheduling allows parties to carry on with their day-to-
day activities. The process is conducted in an informal, cordial and
conducive environment.

2. Mediation is Participative: Parties get an opportunity to present their

case and situation in their own words and to directly participate in
negotiation.

3. Mediation is Speedy, Efficient, and Effective: The process of

mediation is speedy, efficient and economical. It is simple and flexible.
The self-determining and participatory nature of mediation ensures
compliance with the settlement reached. 259
Conflict 4. Parties Deal on Equal Footing: With an impartial, neutral, and
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independent mediator, the parties deal with each other on equal footing.
The mediator ensures that any pre-existing unequal relationship between
the parties does not affect mediation.
5. Consideration of Long Term and Underlying Interests of the Parties:
At each stage of the dispute resolution process, long term and underlying
interests of the parties are considered. This includes the stages of
examining alternatives, generating and evaluating options, and settling
the dispute with focus on the present and the future and not on the past.
This provides an opportunity to the parties to comprehensively address
and resolve all their differences. In mediation the focus is on resolving
the dispute in a mutually beneficial settlement. A mediation settlement
often leads to the settling of related or connected cases between the
parties. Mediation allows creativity in dispute resolution. Parties can
accept creative and non-conventional remedies which satisfy their
underlying and long term interests, even ignoring their legal entitlements
or liabilities.
6. Settlements are Final: The disputes settled through mediation are put to
rest fully and finally, as there is no scope for any appeal or revision and
further litigation. In the cases of court referred mediation, refund of court
fees is permitted as per the rules.

3.3.3 What can be Mediated

Mediation is mostly available in civil matters. However, some non-violent
criminal cases, like those involving verbal harassment, are often resolved
through mediation. Also, claims that do not involve complicated legal issue
are the matters suited for mediation. For example, a dispute with a neighbour
over an encroaching bush or the brightness of their outdoor lights are hardly
the types of matters that merit a lawsuit. In such matters, it may be wise to
seek mediation to end conflicts and save parties from long drawn legal
processes. Quick resolution of conflicts is much desired than letting them
grow as disputes for parties to lose their peace of mind. Mediation cases often
involve conflict arising in divorce and child custody issues and in disputes
between family members, neighbours, business partners, landlords and
tenants, and labour unions and management, and consumer disputes. In some
jurisdictions, mediation is mandatory when it involves child custody issues
and disagreements with neighbours.

3.3.4 What cannot be Mediated

Matters that cannot be mediated include matters pertaining to elections,
criminal matters, tax levies, and representative suits.
3.3.5 Convening for mediation
Convening is the first necessary step of mediation. The convening stage is the
process of getting people to participate in mediation. This is usually done
through building credibility, establishing rapport with disputants, educating
participants about the mediation process and gaining a commitment to
mediate. Following are the steps of convening:
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• Educate the parties about the mediation process. Mediation,
Negotiation, and
• Adjudge and ensure that the matter is appropriate for mediation. Conciliation

• Understand the needs of the parties.

• Instruct participants about expectations as well as the scope of issues for
mediation.
• Proactively prepare the disputants for resolution.
• Explore common interests of the disputants and gain commitment to
mediate.
• Develop rapport and build credibility through transparency.

3.3.6 Training of Mediators

Mediation is developing in India and efforts are being made to establish it as
a fully developed tool for resolution of disputes. Training is necessary for a
mediator to learn the fundamentals of mediation and be ready as a
professional. Training is required for a mediator irrespective of their
background, whether they are judicial officers, advocates or persons
belonging to any other befitting category. Training programmes for mediators
generally include lessons on managing mediation process effectively;
developing and refining questioning techniques and negotiation skill; moving
beyond intractability; settling disputes and conflicts effectively; encouraging
participants through neutral language towards settlement; and transforming
verbal and non-verbal communication. It is necessary to follow uniform
mediation processes and programmes all over India. Uniformity is required
also in the matter of duration, nature and curriculum of the training for
mediators.

3.3.7 Ethics for Mediators

• To follow and observe rules of mediation strictly and with due diligence.
• To not carry on any activity or conduct that is unbecoming of mediators.
• To uphold the integrity and fairness of the mediation process.
• To ensure that the parties involved in the mediation are well informed
and have an adequate understanding of the process of mediation.
• To be sure that they are qualified to undertake and complete the assigned
mediation in a professional manner.
• To disclose any interest or relationship, with either party, that is likely to
affect impartiality.
• To avoid, while communicating with the parties, any impropriety or
appearance of impropriety.
• To be faithful to the relationship of trust and confidentiality imposed in
them as mediators.
• To recognize that mediation is based on principles of self-determination
by the parties and that mediation process relies upon the ability of parties
to reach a voluntary, undisclosed agreement.
• To maintain the reasonable expectations of the parties to confidentiality. 261
Conflict • To refrain from promises or guarantees of results.
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Activity 1: Review any mediation which has successfully resolved a conflict.
Write about it in brief.
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Check Your Progress - 1

Notes: a) Write your answers in about 50 words.
b) Check your answer with possible answers given at the end of the
unit.
1. What do you understand by mediation
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2. What are the steps involved in convening a mediation?
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3.4 NEGOTIATION
Generally, negotiation is a discussion between people to arrive at an
acceptable solution to their conflicting interests. In everyday life buyers and
sellers negotiate. The sellers would want to earn as much profit as they can
from their sales and the buyers would want to buy goods and service at lower
prices as they can. They negotiate and arrive at acceptable price through
discussions and keeping in sight their interest. Negotiation may be defined as
any form of direct or indirect communication through which parties who
have conflicting interests discuss the form of any action which they might
take together to manage and ultimately resolve any dispute between them.
Negotiations may be used to resolve an existing problem or to lay the
groundwork for a future relationship between two or more parties. It must be
noted that there is no compulsion for either of the parties to participate in the
process of negotiation. The parties have the free will to either accept or reject
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the decisions that come out of the process of negotiation. There is no Mediation,
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restriction in the number of parties that can participate in the process of Conciliation
negotiation. They can vary from two individuals to the process involving
dozens of parties. Unlike arbitration and mediation, the outcome of a
negotiation is reached by parties together without resorting to a neutral third
party. The process is flexible and informal and also ensures confidentiality at
the choice of the parties.

3.4.1 Seven Pillars or Elements of Negotiation

Various authors, including Steven P. Cohen, Roger Fisher and Daniel
Shapiro have identified the seven pillars or elements of negotiation or
wisdom. Each time you negotiate, says Cohen, consider how each of these
elements affects the process and how each is prioritized.

1. Relationship
One may find oneself negotiating with the same individuals over and
over and, therefore, it is important to take a wider view of each
negotiation and see how it may develop a long-term relationship.
Building relationship and rapport in the process is extremely useful for
greater understanding and quicker resolutions.
2. Interests
One needs to understand one’s own interests such that one’s decisions
don’t undermine them. At the same, one also needs to understand, as
much as one can, the interests of other parties. By doing so, one can
increase one’s ability to influence those parties by showing them how
one has incorporated their interests in one’s proposals of resolution.
3. Best Alternative to a Negotiated Agreement (BATNA)
The BATNA is the balance of power between the negotiating parties,
says Cohen. If one has a strong BATNA, one will have greater power to
influence the outcome of the negotiation. If one understands the relative
BATNAs, one will understand whether negotiation is a good way to
resolve the issues one faces. This way, one will also know what choices
one can make while negotiating and deciding.
4. Creativity
If negotiating partner/s have limited scope and can’t see alternatives to
their initial proposal, creativity may become the top priority in the
negotiation process. The options created while negotiating should serve
the interests of both/all the parties. If the options generated and explored
do not meet both sides’ interests, at least to some extent, it is unlikely to
reach a settlement. Options can be thought through and evaluated by a
single side or both/all sides jointly. However, it is important to first
generate options and then evaluate their merits.
5. Fairness and Legitimacy
How other negotiating partners perceive your behaviour and what they
believe about the fairness of the process can determine whether they’re
committed to the end results. The objective standard or standards should 263
Conflict be used to jointly determine if the options, proposals, and/or agreements
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are fair. The objective criteria will ideally be based on common business
practices, industry standards, precedents, or the like. Using fair
standards for settling a dispute or making a deal ensures both sides will
believe they were treated fairly and provides the negotiator’s
constituency reasoning for accepting the terms of the agreement.
6. Commitment
No matter how favourable an outcome may seem, a negotiation is only
successful when it yields an agreement to which all parties are
committed. Commitments should be realistic, quantifiable and specific.
Parties should understand their parts of commitments clearly. Any
ambiguity may further lead to conflict.
7. Communication
Information is a critical aspect of negotiation. Communication is how
information moves from one party to others. Through the process of
communication, parties exchange crucial information that helps them be
more understanding and accommodative of their needs and situations.
Effective communication ensures the exercise of the parties’ right to be
heard. Communication must be clear to prevent assumptions and
apprehensions.

3.4.2 Qualities of a Good Negotiator

Following are the qualities of a good negotiator:
• Preparation and planning skills
• Proper understanding of the subject matter being negotiated
• Ability to think clearly and rapidly under pressure and uncertainty
• Ability to express thoughts verbally
• Listening skills
• Judgment and general intelligence
• Integrity
• Ability to persuade others
• Patience
• Decisiveness
• Ability to consider and weigh lots of options
• Awareness of the process and style of the other person
• Flexibility

3.4.3 Productive Negotiation

The background homework: Before any negotiation begins, it is important
to understand the interests and positions of the other side relative to your own
interests and positions. Consider these points, put them down and spend time
in advance to see things from the perspective of the other side.
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During the process: Don’t negotiate against yourself. This is especially true Mediation,
Negotiation, and
if you don’t fully know the position of the other side. Much is learned about Conciliation
the real needs of the other side during the actual negotiation process. Stay
firm on your initial set of positions and explain your rationale but don’t give
in too early on the points. Wait to better understand which points are more
important to the other side.

3.4.4 Mixed Motive Exchange

Mixed motive negotiation employs aspects of both the integrative and
distributive approaches. The idea is to create additional value such that both
the parties have some of their interests met, but with an understanding that
the newly created value might not be enough for everyone to get the same
amount, or everything they want. There is no one way to conduct mixed
motive negotiations. The parties may blend tactics from the integrative and
distributive negotiation, or they may switch from one strategy to the other.
Mixed motive negotiation is most often used when the parties involved are
not sure if their interests are compatible.

In almost all negotiating situations you will have "mixed motives," where
you wish both to create value with your other, and then to claim your share.
In these situations, you may use tactics common to both strategies, or switch
at least a little from one strategy to the other.

3.4.5 Winner’s Curse

The winner’s curse describes a common problem in negotiation, that is
lacking an advanced understanding of this phenomenon. The party who wins
an auction of a commodity of uncertain value with a fair number of bidders,
typically pays more than its actual worth. Winner’s curse occurs when a
negotiator overbids for an item due to competitive pressure or other non-
value related factors. The following guidelines are important to avoid
becoming the next victim of the winner’s curse:
• Analyse whether the asset has a common value element. A common
value asset, like a jar of coins, has equal value to all bidders. If so, bid
with caution.
• Assess your capabilities and compare them with those of other bidders.
• Before placing each bid, pause to consider how you would feel if you
won the auction.

3.4.6 Interest Based Negotiation

In interest based negotiations, parties develop understanding of their interests
and find creative solutions for them to meet them. An interest-based
negotiation is one in which parties share the interests that underlie their
grievances and try to jointly negotiate a solution that satisfies all parties.
Interest-based negotiation, or integrative negotiation, involves exploring the
deeper interests underlying parties’ stated positions to identify potential
trade-offs and win-win opportunities across issues and interests. Negotiation
ultimately involves a choice between the deal you’ve been offered and what
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Conflict you would get by walking away from the table. Thus, the negotiation process
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should involve a search for solutions that leave both parties better off than
they would be if they reached an impasse and turned to their outside options.
It turns out that interest-based negotiation has proven to be the most reliable
way to create value and resolve conflicts.
When you know the areas of agreement where you and your counterpart are
in alignment (and those areas on which you diverge), a skilled negotiator can
craft an agreement that most closely approximates his/her own and the
counterpart’s needs while building a bargaining relationship with the
counterpart. Rather than antagonistic, the negotiation process becomes a
value-creating, integrative situation in which each side gets a “fair share” of
the pool of resources. By listening closely to each other, treating each other
fairly, and jointly exploring options to increase value, negotiators can find
ways of working together that reduce the need to rely on hard-bargaining
tactics and unnecessary concessions.

3.4.7 Integrative Negotiation

Integrative negotiation is possible when the parties have some shared
interests or opportunities to realize mutual gains through trades across
multiple issues. In integrative negotiation, more than one issue is available to
be negotiated. Whenever multiple issues are present—such as salary,
benefits, and start date, in the case of a job negotiation—negotiators have the
potential to make trade-offs across issues and create value. Often, what looks
like a distributive negotiation is, in fact, an integrative negotiation, as there
may be additional issues one can add to the discussion. With integrative
negotiation, creativity can lead to value-creation for both parties. But coming
up with innovative ideas in the middle of the collaborative process can be
difficult, so how does the skilful negotiator change his/her mindset to become
more creative? How can you uncover additional value, make useful trades,
and put together a package that exceeds your party’s expectations?

To begin with, contemplate the other side’s BATNA and interests as

thoroughly as you do your own. After all, you may not be able to propose a
package that he’ll accept if you haven’t thought about his outside options,
needs, and wants. By preparing to propose multiple packages at the same
time, you can avoid having an early feeler misconstrued as a final offer. All
this preparation makes it more likely that the parties will find items of
differing value that can be traded to create value.

3.4.8 Distributive Negotiation

Distributive negotiation involves bargaining over a fixed amount of value. In
distributive negotiation, the focus is on dividing a single resource. Child
custody and song writing credit are examples of distributive negotiation.
Wise negotiators recognize the value of both collaborating and competing at
the bargaining table. They look for ways to increase the pie of value for all
parties, often by identifying differences across issues and making trade-offs.
They also rely on distributive bargaining strategies to try to claim as much of
that larger pie for themselves. People often think that distributive bargaining
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strategies require adversarial bargaining, such as making tough demands or Mediation,
Negotiation, and
threats. But in fact, the most effective distributive bargaining strategies Conciliation
require you to set aside plenty of time before your negotiation to engage in
clear-eyed preparation.

In particular, negotiators should determine their best alternative to a

negotiated agreement, or BATNA—what they’ll do if they don’t achieve
their goals in the current negotiation. A job seeker for example might decide
to pursue other job openings. Negotiators also need to assess their reservation
point or walk away point—the figure at which they’re indifferent between
accepting the deal they negotiated and turning to their BATNA. Additionally,
to help determine the most you’ll be able to get in a distributive bargaining
situation, take some time to research the other party’s likely BATNA and
reservation point. Then, armed with a sense of each party’s reservation point
and BATNA, you should be able to determine if a zone of possible
agreement, or ZOPA, exists in your distributive bargaining. The ZOPA is the
range of all possible deals that both parties would accept. Your reservation
point will be at one end of the ZOPA, and the other party’s reservation point
will be at the other.

3.4.9 BATNA – WATNA

BATNA stands for “best alternative to a negotiated agreement”. The full
form of WATNA is “worst alternative to a negotiated agreement”. These
alternatives a party would have if negotiations fail.
A valid BATNA has three key characteristics:
1. It must be an option that one can execute on one’s own, without any
action or interaction with the other negotiating party. BATNA will not be
a BATNA if it requires the participation of the opposite party.
2. It must be a real option. It must be something that one can and would
want to do, meaning that one has the time, resources, and will to execute
it.
3. It must be perceived to be credible by the opposite party. One may
believe that one will execute one’s BATNA. However, unless the
opposite party also believes this BATNA’s credibility, it will be of no
use.
Before a WATNA is prepared, each party must decide how likely that
particular outcome will be. Both parties need to be realistic. If either could
achieve their ideal outcome with a minimum of fuss, there would be no need
for negotiation in the first place. An organization without a clear WATNA
(or BATNA) will enter a negotiation with false and unrealistic expectations.
The worst alternative to a negotiated agreement imbues each party with a
sense of purpose at the negotiating table. With greater awareness of their
respective worst-case scenario, each party gains more clarity as a result.

3.4.10 Purpose of Analysis

The purpose of analysis is to help parties make informed decisions about
possible options for resolution or a deal. It is almost always helpful to
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Conflict compare possible outcomes along alternative paths to actual proposals on the
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table in a negotiation before making a decision within the negotiation. If an
alternative looks highly attractive and is highly probable, a party may choose
to reject a proposal that is significantly less satisfactory. On the other hand, if
proposed options in the negotiation look reasonable or better in comparison
to probable alternative outcomes, a party may feel more comfortable
accepting a proposed deal. The analysis assists the parties in deciding if a
particular resolution is in their best interests or not. In some cases, a party
will reject a proposed resolution even though the probable alternatives are
clearly less attractive in a business sense. However, the exercise is still useful
in this instance because:

• The parties are making their choices having considered and with full
knowledge of these probable alternative outcomes (i.e. with their eyes
and mind wide open).

• The exercise highlights the existence of other interests, beyond business

sense, that are driving the party. Knowledge of these interests may be
helpful to continue negotiation. At a minimum, parties gain clearer
understanding of their interests and the value they are placing upon them.
Mediators should also keep in mind that they may have different values,
risk tolerance levels and approaches to decision-making than the parties
and take care to respect those differences. Again, the purpose of the
analysis is to educate and promote informed decision-making, not to
force settlement or impose the mediator’s idea of what makes sense.

3.4.11 Quality of Analysis

The more accurate the analysis, the more helpful it will be to the parties in
making informed decisions. Mediators can try to improve the quality of
analysis by taking steps, as necessary, to educate the parties and their
representative regarding the analysis. They can also guide the parties through
the elements of the analysis during private sessions so as to ensure that it is
done thoroughly, and play devil’s advocate and ask reality testing questions
when attorneys make predictions that seem overly exaggerated or inaccurate.
However, when first drawing out the analysis, the mediator may find it more
effective to accept a party or attorney’s estimations for possible best and
worst outcomes. It is usually easier to question and refine these estimates
using the other party’s predictions and information rather than risking more
direct contradiction by the mediator.

3.5 CONCILIATION
3.5.1 Introduction –How it is done
Conciliation is an alternative out-of-court dispute resolution method. Like
mediation, conciliation is a voluntary, flexible, confidential, and interest
based process. The parties seek to reach an amicable dispute settlement with
the assistance of the conciliator, who acts as a neutral third party.
The main difference between conciliation and mediation proceedings is that,
268 at some point during the conciliation, the conciliator will be asked by the
parties to provide them with a non-binding settlement proposal. A mediator, Mediation,
Negotiation, and
by contrast, will in most cases and as a matter of principle, refrain from Conciliation
making such a proposal.
Conciliation is a voluntary proceeding, where the parties involved are free to
agree and attempt to resolve their dispute by conciliation. The process is
flexible, allowing parties to define the time, structure and content of the
conciliation proceedings. These proceedings are rarely public. They are
interest-based, as the conciliator will when proposing a settlement, not only
take into account the parties’ legal positions, but also their commercial,
financial and/or personal interests. Like in mediation proceedings, the
ultimate decision to agree on the settlement remains with the parties.

3.5.2 When it is used

At times when two or more parties are not ready to face each other nor
communicate with each other directly, the conciliator helps parties to
understand their own perspective, feel more empowered to speak their truth
and represent their own needs in a future dialogue with the other parties to
the conflict. The conciliator addresses any power disparities perceived by any
party in a safe manner. The ensuing dialogue in this form of conciliation can
– with the parties’ wishes – involve the conciliator as a facilitator until the
parties feel comfortable to communicate on their own. This form of
conciliation is non-linear and involves an informal method of reconciliation
between people who do not necessarily need to negotiate legal issues such as
property rights or tort injuries. It can also involve more emotional and
passionate elements as tangible and historical topics emerge as the root
causes of the conflict.

3.5.3 Advantages of Conciliation

1. Conciliation ensures party autonomy. The parties can choose the
timing, language, place, structure and content of the conciliation
proceedings.
2. Conciliation ensures the expertise of the decision maker. The parties
are free to select their conciliator. A conciliator does not have to have a
specific professional background. The parties may base their selection on
criteria such as; experience, professional and / or personal expertise,
availability, language and cultural skills. A conciliator should be
impartial and independent.
3. Conciliation is time and cost efficient. Due to the informal and flexible
nature of conciliation proceedings, they can be conducted in a time and
cost-efficient manner.
4. Conciliation ensures confidentiality. The parties usually agree on
confidentiality. Thus, disputes can be settled discretely and business
secrets will remain confidential.

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Conflict
Management
3.5.4 Difference between arbitration and conciliation
The difference between arbitration and conciliation can be drawn clearly on
the following grounds:

1. Arbitration refers to a method of resolving industrial disputes, wherein

the management and the labour present their respective positions to the
neutral third party, who takes a decision and imposes it. Conciliation is a
method of resolving the dispute, wherein an independent person, who
meet the parties jointly, helps them to arrive at negotiated settlement or
resolve their differences.
2. The decision made by the arbitrator is acceptable to the parties
concerned. On the other hand, the conciliator does not have the right to
enforce his decision.
3. Arbitration requires a prior agreement between parties known as
arbitration agreement, which must be in writing. As against this, the
process of conciliation doesn’t require any prior agreement.
4. Arbitration is available for the current and future disputes whereas the
conciliation can be adopted for existing disputes only.
5. Arbitration is like a courtroom proceeding, wherein witnesses, evidence,
cross-examination, transcripts and legal counsel are used. On the
contrary, Conciliation is an informal way of resolving disputes between
the management and labour.

Activity 2: Review any conciliation case. Write about it in brief.

…………………………………………………………………………………
…………………………………………………………………………………
…………………………………………………………………………………
…………………………………………………………………………………
…………………………………………………………………………………

Check Your Progress - 2

Notes: a) Write your answers in about 50 words.
b) Check your answer with possible answers given at the end of the
unit.
1. What is meant by winner’s curse?
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................

270 .....................................................................................................................
2. What is the difference between conciliation and mediation? Mediation,
Negotiation, and
..................................................................................................................... Conciliation

.....................................................................................................................
.....................................................................................................................
.....................................................................................................................
.....................................................................................................................

3.6 LET US SUM UP

In this unit you read about three important concepts- Mediation, Negotiation
and Conciliation. We discussed the characteristics and advantages of
mediation. What can and cannot be negotiated have also been discussed.
Steps involved in convening a mediation, training for mediation and ethics
for mediators have also been discussed. In negotiation, the seven elements of
negotiation have been discussed. The qualities that a good negotiator should
posses has also been discussed. Besides reading the concept of winner’s
curse, you have also read other different concepts of negotiation like
BATNA-WATNA. In conciliation you read about how and when it is used
and its advantages. The difference between arbitration, negotiation and
conciliation have also been discussed.

3.7 KEYWORDS
Negotiation: Negotiation may be defined as any form of direct or indirect
communication through which parties who have conflicting interests discuss
the form of any action which they might take together to manage and
ultimately resolve any dispute between them.
Mediation: Mediation is a voluntary and party-centered process of dispute
resolution. It is structured negotiation, involving a neutral party (the
mediator) to assist the parties at dispute in amicably resolving their dispute.
Conciliation: Conciliation is an alternative out-of-court dispute resolution
method. The main difference between conciliation and mediation proceedings
is that, at some point during the conciliation, the conciliator will be asked by
the parties to provide them with a non-binding settlement proposal. A
mediator, by contrast, will in most cases and as a matter of principle, refrain
from making such a proposal.
Winner’s curse: The winner’s curse describes a common problem in
negotiation, that is lacking an advanced understanding of this phenomenon.
BATNA: BATNA stands for “best alternative to a negotiated agreement”
WATNA: WATNA is “worst alternative to a negotiated agreement”.

3.8 BIBLIOGRAPHY AND SELECTED

READINGS
Acland, A. F. 1990. Managing Conflict Through Mediation. London,
Hutchinson Business. ––––. 1995. Resolving Disputes Without Going To
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Conflict Court: A Consumer Guide to Alternative Dispute Resolution. London,
Management
Random House.
Arrow, K.; Mnookin, R. H.; Ross, L.; Tversky, A.; and Wilson, R. 1995.
Barriers To Conflict Resolution. London, W. W. Norton.
Bazerman, M. 1983. Negotiator Judgment: A Critical Look at the Rationality
Assumption. American Behavioral Scientist, Vol. 27, No. 2. 1986.
Bazerman, M. and Neale, M. 1993. Negotiating Rationally. New York, Free
Press.
Bercovitch, J. 1984. Problems and Approaches in The Study of Bargaining
and Negotiation. Political Science. Boulder, Colo. 1984.
Bercovitch, J. and Rubin, J. 1992. Mediation in International Relations.
London, Macmillan. Berton, P.; Hiroshi, K.; and Zartman, B. 1999. Justice,
Fairness, and Negotiation: Theory and Reality. New York, St. Martin’s.
Berton, P.; Kimura, H.; and Zartman, W. 1999. International Negotiation,
Actors, Structure/Process, Values. New York, St. Martin’s.
Birk, R. and Fox, C. 1999. Psychological Principles in Negotiating Civil
Settlements. Harvard Negotiation Law Review, Spring.
Breslin, W. and Rubin, J. 1991. Negotiation Theory and Practice. Harvard
University, PON.
Brett, J. M. et. al., 1998. Culture and Joint Gains in Negotiation. Negotiation
Journal, Vol. 14.
Burgess, G. and Burgess, H. 1994. Environmental Mediation: Beyond the
Limits Applying Dispute Resolution Principles to Intractable Environmental
Conflicts. Working Paper. www.colorado.edu/conflict/tul_text_research/. San
Francisco.
Jossey-Bass. Folger, J. and Bush, R. 1994. The Promise of Mediation:
Responding to Conflict Through Empowerment and Recognition. San
Francisco.
Jossey-Bass – 1996. Transformative Mediation and Third-Party Intervention:
Ten Hallmarks of a Transformative Approach to Practice. Mediation
Quarterly, Vol. 13, No. 4.
Golann, D. 1996. Mediating Legal Disputes: Effective Strategies for Lawyers
and Mediators. Boston, Mass., Little Brown. Gold, L. 1993. Influencing
Unconscious Influences: The Healing Dimension of Mediation. Mediation
Quarterly, Vol. 11, No. 1.
Goldberg, S. B.; Sander, F. E. A.; and Rogers, N. H. 1992. Dispute
Resolution: Negotiation, Mediation, and other Processes. Boston, Mass.,
Little Brown. 1995. Dispute Resolution: Negotiation, Mediation, and other
Processes: 1995 Supplement. Boston, Toronto, London, Aspen.
Gulliver, P. H. 1979. Disputes and Negotiations: A Cross-Cultural
Perspective. Academic Press. Haftendorn, H. 1999.
Hoffman, D. 1997. Tools of the Trade: A Manual for the Settlement-Oriented
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Mediator. Harvard Law Review, Spring. Mediation,
Negotiation, and
Hopmann, P. 1995. Two Paradigms of Negotiation Bargaining and Problem- Conciliation

Solving. The Annals of the American Academy of Political and Social

Science, November.
Kramer, R. and Messick, D. 1991. Negotiation as a Social Process. Sage.
Kremenyuk, V. (ed.) 1991. International Negotiation: Analysis, Approaches,
Issues.
JosseyBass. Kressel, K. and Pruitt, D. 1989. Mediation Research; The
Process and Effectiveness of Third Party Intervention.
Jossey-Bass. Lax, D. and Sebenius, J. 1986. The Manager as Negotiator. New
York, Free Press. Lewicki, R. and Litterer, J. 1985. Negotiation. Illinois,
Homewood.
Mautner-Markhof, F. 1989. Processes of International Negotiation. New
York, Westview. Menkel-Meadow, C. 1996.
The Many Ways of Mediation: the Transformation, of Traditions, Ideologies,
Paradigms, and Practices. Journal of Negotiation, July.
Moore, C. 1996. The Mediation Process: Practical Strategies for Resolving
Conflicts. San Francisco, Jossey-Bass.
Riskin, L. 1996. Understanding Mediators’ Orientations, Strategies, and
Techniques: A grid for the Perplexed. Harvard Negotiation Law Review,
Vol. 1, No. 7 (Spring).
Riskin, L. and Westbrook, J. 1987. Dispute Resolution and Lawyers. St Paul,
Minn., West Publishing.
Ross, W. and LaCroix, J. 1996. Multiple Meaning of Trust in Negotiation
Theory and Research: A Literature Review and Integrative Model.
International Journal of Conflict Management, Vol. 7, No. 4, pp. 314–51.
Resources of the Program on Negotiation of the Harvard University,
https://www.pon.harvard.edu (accessed March 2022).
Arbitration and Conciliation Act, 1996.
Legal services Authority Act, 1987

3.9 CHECK YOUR PROGRESS – POSSIBLE

ANSWERS
Check Your Progress – 1
Answer 1: Mediation is a voluntary and party-centered process of dispute
resolution. It is structured negotiation, involving a neutral party (the
mediator) to assist the parties at dispute in amicably resolving their dispute.
The mediator uses specialized communication and negotiation techniques to
resolve disputes. In mediation, the parties retain the right to decide for
themselves whether to settle a dispute and with what terms of settlement. In
this process, the mediator facilitates communications and negotiations
between the parties. However, it is the parties that always have the control
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Conflict over the outcome of the dispute.
Management
Answer 2: Following are the steps of convening:
• Educate the parties about the mediation process.
• Adjudge and ensure that the matter is appropriate for mediation.
• Understand the needs of the parties.
• Instruct participants about expectations as well as the scope of issues for
mediation.
• Proactively prepare the disputants for resolution.
• Explore common interests of the disputants and gain commitment to
mediate.
• Develop rapport and build credibility through transparency.

Check Your Progress – 2

Answer 1: The winner’s curse describes a common problem in negotiation,
that is lacking an advanced understanding of this phenomenon. The party
who wins an auction of a commodity of uncertain value with a fair number of
bidders, typically pays more than its actual worth. Winner’s curse occurs
when a negotiator overbids for an item due to competitive pressure or other
non-value related factors.
Answer 2: The main difference between conciliation and mediation
proceedings is that, at some point during the conciliation, the conciliator will
be asked by the parties to provide them with a non-binding settlement
proposal. A mediator, by contrast, will in most cases and as a matter of
principle, refrain from making such a proposal.

274