Laws of Power 43: Challenge the Power of Coercion
By Karen S. Walch
Classic negotiation strategies are customarily founded on the power of coercion. Much of classic strategic negotiation planning and execution involve the practice of forcing or manipulating your counterpart. Tricks, intimidation and threats are designed to pressure a counterpart to comply, most often against their will or awareness. This week we conclude the topic of rights-based negotiation approaches with a look at how mediation challenges the practice of coercion while protecting your rights. The law this week expands on Law 39’s focus on Alternative Dispute Resolution and the increased application of mediation and third parties.
Even in a rights-based negotiation approach, mediation is increasingly integrated as an element of rights protection.
In business, personal or public disputes, mediation practices have become established as credible, effective and efficient ways to resolve disagreements. Mediation as a dispute resolution technique utilizes the power of understanding rather than the power of coercion to manage conflict. There is a fundamental framework with the mediation approach which asserts that the parties themselves must take primary responsibility for how their dispute will be resolved and how their rights are protected.
Mediation practices challenge the power of coercive tactics by establishing methods that protect the claimants’ rights to work and make decisions together. In addition, the power of understanding in a mediation process has proven to be effective since the interests and issues which underlie a problem are addressed.
Lawyers who represent parties in mediation, for example, increasingly value the integration of the understanding method as well as the rights based approach. This trend calls for a change in thinking both for lawyers and their clients.
A negotiator who believes that their rights have been violated usually wants to be better understood by a counterpart. However, conflict makes it very difficult for anyone to have any interest to understand the other. Many disputants even resist being in the same room with their opponent, much less be interested in problem solving with them.
There is also a tendency for negotiators in a dispute to want to avoid primary responsibility for the resolution; and tend to surrender their conflict management responsibility to a judge, arbitrator or even a mediator. A mediation approach is an effective and practical way to assist the parties to take responsibility and encourage their problem solving skills.
A mediated, understanding approach acknowledges not only the legal opportunities and rights protections, but also supports the parties’ ability to understand and resolve the underlying problems. An understanding based approach does not deny the importance of money, legal remedies, or business realities. The law and exploration of legal rights are not excluded in a mediation process.
The law, however, is not at the center stage, but serves as a support. Most often when the “legal conversation” becomes the focal point of the process, the process becomes too adversarial and, even, the mediation settlement tactics, for example, become coercive or manipulative.
The last two weeks, I observed some of my MBA students apply their mediation skills to a business case which involved a multinational computer manufacturer and hotel developer.
This situation required the private sector to negotiate with not only the local, but also federal level government officials, such as the Ministries of Agriculture, Culture, Economic Affairs, and Environment, farm unions, and citizen and environmental groups. These skilled negotiators illustrate how an understanding based mediation can be very effective.
Their mediated process had a focus on not only the legal reality and business practicality of private sector issues, but also how to work with and not against public sector interests. In their case, they focused on both the rights and the law (a rights-based approach – Laws 39-43) and the mediated integrative process (an integrative approach – Laws 34-38).
The business situation they illustrate is a common one in today’s market. Investment today requires business negotiators to think about not only their own private needs, but also the future development path for any locality they want to invest in.
In classic terms, the private sector negotiators could use tricks, intimidation, and hard ball strategies with the city about their business plans for the plant and hotel plans. However, since this municipality and state officials had adopted national sustainability principles, the private sector negotiators were required to meet the legal requirements before their business propositions could be accepted.
In the case I observed here, there was an elected political official, who facilitated an integrative negotiation process so the parties were able to recognize and negotiate with a number of stakeholders who were impacted by the private sector proposals.
In particular, this case illustrates how not only is it critical to yield to the law or the national sustainability principles, and also how to facilitate an integrative process. The facilitator encouraged the parties not to become adversarial about the established principles, but to work together to implement the principles in the context of both private and public sector interests.
The ultimate solutions for the hotel and plant construction in this case were practical and met the sustainability principles for the municipality. The parties developed a plan to make the project cost effective, with minimal public expense.
The hotel and plant initiatives were coordinated with current investment patterns and policy and resource plans for the city. In addition, the environmental risks, land and water use, and national resource preservation were addressed and satisfied. This is difficult, but not impossible to do!
Law 43 reflections
1. Think of how you can use ‘bifocal vision’ – use the law and rights protection as a yard stick to assess your rights as you use integrative strategies.
2. Consider your impulse of service, justice, and citizenship by working with others to search for a sustainable solution.
3. Reflect on how business and economic benefits are related to levels of social participation and quality of life in the culture you work.
4. Think of the law as one reference point and how the law can support fairness and practical solutions.
Read Challenging Conflict: Mediation through Understanding by Gary Friedman and Jack Himmelstein (ABA Publishing, 2008).
48 Laws for 21st Century Global Negotiators: Join Thunderbird Professor Karen S. Walch, Ph.D., as she explores the laws of power for 21st century global negotiators. Each Monday she discusses one law and provides an exercise to identify and enhance individual negotiation power. Go to the main menu for the series.