David Richbell, FCIArb (Mediation)
Most people consider conflict to be something to avoid, a negative influence that can only cause pain and discomfort. In fact conflict can be a catalyst for understanding and innovation, and a force for progress. Disagreement can cause discussion, an exploration of the reasons for differences, that can lead to understanding, which can lead in turn to agreement and co‐operation. It just needs people to resist the instinct for fight or flight or freeze and to pause and be prepared to talk. And listen. If this happens then it can lead to understanding, valuing differences and a preparedness to find a joint solution.
We are human beings; all different, all emotional, and all the product of our genes and our environment. We see the same facts and events through different eyes and process them differently. It doesn't necessarily mean that our version of the truth is any more right or wrong when set against someone else's truth – it is just different. Once we understand that, we should be able to find out why someone else's truth is different to ours, and to accept that their truth is genuinely held and should be valued alongside ours.
Because most people want to avoid conflict, they will usually avoid having a difficult conversation. Sometimes the problem will go away – time may be enough for the issue to evaporate or sort itself out. Unfortunately that is only sometimes. Most times the problem will get worse because it has not been dealt with at the start until it explodes as a much more serious issue later on. People need to feel that they are being heard when they have something to say that is important to them. If they feel they are not being heard they raise their voice in the hope that someone will notice, but it usually has the opposite effect because people instinctively want to avoid others who are shouting or being difficult. The trouble is if that doesn't work the voice becomes more strident, and if that doesn't work they resort to violence. And violence breeds violence. Not good.
But it does take a real effort to address an issue face on at the start and not to let the instinct for fight/flight/freeze take over. However, making that effort can reap riches. Just to enquire why a person sees the same facts and events differently, or why they feel so strongly about something, can make all the difference; just taking time to enter into a dialogue will in itself change the dynamic. People need to feel heard and demonstrating that you are listening and really hearing what is being said in a non‐judgemental way will lead to a rewarding conversation.
We are in an age of fighting, of trying to win. Our culture is to fight for our rights, to seek justice through the courts, to oppose those who have different views.
The trouble is that lifetime habits are difficult to change. Western culture, or more particularly, British and American culture, is founded on positional negotiation. That invariably means building the best possible position and giving little, slowly. That usually either leads to deadlock and a failed negotiation, or to one party getting the better of the other. Both results almost always damage the relationship. However, co‐operating to achieve the best outcome for all parties is, for most people, counter cultural – we like to ‘win’. So setting aside the need to win, and working alongside others, can be quite a challenge. It involves a resistance to instinct and a stepping back from ‘rights’. It means listening instead of demanding, exploring options instead of quarrelling, and seeking interests rather than fighting claims. It needs extra effort, but the outcome, and the experience of negotiating in a better way, can be life‐changing.
However, making the extra effort is only the start; there are other challenges on the way:
Actually, our similarities are probably more basic and so more important. We want to be loved – and to have an outlet for our own love. We want to be respected and to retain our dignity. The need for food and shelter, warmth, and human contact are basic to us all. However, we are also unique; each one of us is different and so our emotions, our demeanour, our way of relating to others, of making decisions, our response to conflict (and to pleasure), all are unique. And all affect the way we communicate and negotiate. Add to that the cultural dimension, and we are in a potential minefield.
The first question is: ‘what do we mean by culture?’ The best answer to that question is ‘it is the way we do it here’. It is so easy to assume that culture means ethnicity, custom, religion, tradition, and so on. That may well be so but it is so much more complex than that. Every community has its own culture and, unless you come from that community, there is a danger of being unaware of particular sensitivities that may have an impact on any communication or negotiation. Indeed, even being a member of that community is no guarantee of knowing all the sensitivities! We are all individuals with our own characteristics, and few of us conform to the assumed group characteristics. We may well conform in many ways to a group identity but no human being acts all the time in an individually predictable way. So the danger of such ignorance is that we make assumptions, usually based upon stereotypes, and assumptions are a weakness.
Any position based upon assumptions is a weak position. It should always be questioned and then find ways that can change assumptions into facts. The fewer assumptions there are, the less risk, and therefore the stronger the position taken. Researching, finding other's experience of the individual or group, even enquiring of the individual or group itself, will provide more information and therefore build more confidence before entering into the communication or negotiation itself. So be open to learning that ‘they’ are not as expected. The wide variations among cultures do provide clues to follow up, but all of us have interests, qualities and personal preferences that do not fit a standard mould. It is called the richness of life! So the rule must be to turn assumptions into facts. It will lead to a far stronger, and therefore less risky, position.
Having said all that, there are some important cultural issues that need to be clarified before business can commence. Time is one of them. Most western cultures view time as critical and are used to deadlines and the need for closure so that the next issue can be addressed. Some cultures see time as endless and have a need to consider, discuss and gestate before a decision can be reached. This can be very frustrating to a deadline‐controlled negotiator, but prior knowledge will allow the negotiator to plan a strategy that will use the time efficiently.
Similarly, the matter of authority could be an issue. In some cultures, particularly eastern and oriental, the most senior person often speaks the least. Indeed, the real decision maker may not even be present. In others, the final decision may need to be collective, so taken back to the group by its representatives before a solution can be ratified. Of course, that may well be present in western negotiations, but born of a reluctance to take responsibility in case of criticism (as witnessed in many UK Government and local authority negotiations). This underlines the importance of clarifying the situation beforehand. Who is the decision maker? Does a deal have to be ratified? What time scale is involved?
Perception of fairness is not just a cultural thing. People come to the negotiation table with their own belief as to what is fair. Each will have their own set of values and their own need to leave the negotiation with dignity. This underlines the importance of getting the headline agreed (what is the desired outcome) and establishing each party's needs (rather than claims). The first will provide the common focus and goal and the second will shape the eventual deal.
A well‐established reputation for fair dealing can be an extraordinary asset. It builds trust and often starts negotiations at a different and more co‐operative level.
Sometimes doing a deal that is not fair could be the best long term outcome; for example if the relationship is precious and the concession relatively pain free. Ignoring the fear that this may set a precedent (a common fear expressed in negotiations), the concession may well preserve or even strengthen a relationship and be remembered in future dealings. Or it might just be that it is worth saving the energy and resources of a fight for more important issues.
Trust is a precious commodity. It enables harmony, confidence, and dependability. When broken it causes suspicion, disengagement, and opposition. The dictionary describes trust as ‘the firm belief in the reliability or truth or strength of a person; the state of being relied on; a confident expectation’. In business it grows from an assumption of ethical working, of parties sharing the same principles and belief of fairness. So when parties trust each other, there is an assumed common ground upon which to build. Unfamiliar parties will test each other in the early stages of a negotiation to be sure that their assumption of common ground, of trust, is justified.
However, when trust is broken, or even assumed to be broken, it takes a lot of time and patience, and often some risk and vulnerability, to recover. It happens in small increments, each one being tested before the next is considered. In these circumstances it may be wise to change the negotiation team, or individual.
In the long term ‘beating’ the other side, and causing them harm in the process, may not be a satisfactory outcome.
A good working relationship is one that can cope with differences. Indeed, a healthy organisation will value those differences and work on how they can be used to the benefit the organisation. A good working relationship tends to make it easier to get a good substantive outcome (for both sides). And good substantive outcomes tend to make good relationships even better.
Of course, some people don't care about relationships. They like a quick ‘kill’ and then move on. It doesn't matter about squashing or bullying the ‘opposition’ into submission. In fact some people enjoy the reputation of being known to be hard. However, such people eventually run out of others to beat up; their reputation goes before them and better deals can be made without them. The majority of people want a good relationship with those with whom they work, and squashing the opposition doesn't help that!
There is a growing acceptance that better outcomes result from co‐operation. In some major infrastructure projects, the UK Government has adopted the principal of collaborative working and has weighted tender analysis towards non‐confrontational company policies. Indeed, in 2017 ISO 4401 (based upon BS 11000) was published and it attempts to formalise such an approach, being titled ‘Collaborative business relationship management systems – requirements and framework’. It aims to assist companies in establishing and improving collaborative relationships, both within and between organisations. This is an encouraging move and one that recognises co‐operation leads to better outcomes.
It is remarkable really that it has been possible to ‘standardise’ what is essentially behaviour. Of course, it ultimately depends on the willingness of the individual to make it work. It means resisting the instinct to fight or flee, to become defensive and/or seek to blame others when things go wrong, or to reverting to type when challenges occur. However, it does signal a recognition that collaborative working is an accepted, if not ultimately preferred, way of negotiating and carrying out business generally.
In any negotiation parties need to be clear about the intended outcome (the headline, against which everything else is checked) and each party's needs. Note the term ‘needs’ not ‘claims’. Needs can often be very different to a stated claim. So if needs are known and can be met then a deal is almost certain. Once a party sees that their needs will be met in the emerging deal, their attitude moves towards commitment and co‐operation. The best deals emerge from co‐operation.
Positional (adversarial) bargaining results in the minimum deal getting agreement. Co‐operative negotiation, seeing the situation as an exercise in joint benefit, softens the edges of negotiation and allows outcomes that benefit all parties. The parties are able to seek solutions that enrich a deal rather than pare it to the absolute minimum.
Despite all the above, some issues develop beyond disagreement into disputes. A business would do well to include a staged resolution process in its contracts, starting with face‐to‐face negotiation through to a third party decision. The following dispute resolution spectrum explains briefly the options that are available.
Negotiation aside, of all the above methods of dispute resolution, mediation is the most rewarding and returns common sense to the dispute resolution arena. When a party cannot negotiate a satisfactory outcome to a problem the first thought is usually to involve solicitors. Necessarily, because that is their expertise, they turn a commercial problem into a legal one, and thereafter the language is often not easily understood by the lay person. Time passes, bills are paid and yet solutions rarely appear. Court dates are often months if not years away and the party has no control of the process or the outcome. Mediation allows the parties to a dispute to step off the litigation treadmill and take back control; just for a day (usually). The mediator is there to give the parties the best opportunity to reach a deal. And most do.
Another advantage of doing deals in mediations is that the scope of possibility far exceeds that in arbitration or the courts. It can include anything, so long as it is legal, and many deals have included staged payments, work in lieu of payment, discounts on future work, even take‐overs, and new joint ventures. It is an opportunity to enrich an outcome; an opportunity that is not open to other dispute resolution processes.
It also allows parties to do deals with dignity. Face is an issue in every culture – losing face is not a happy experience. Mediation allows a party to settle and leave with head held high – face saved and dignity preserved.
It can be said that justice is best obtained by the parties taking control of their dispute and its outcome, rather than by a judge or arbitrator imposing a decision that can only be based upon the law. So mediation, which has become an established part of the dispute resolution landscape, should be the route for anyone who has failed to negotiate an outcome themselves, and the courts, including arbitration, should be the last resort.
Better still, though, is to deal with an issue before it escalates into a dispute. Face up to it, talk about it, take time to understand and co‐operate in finding a solution. It is so much more satisfying and rewarding, and by far the best way to retain relationships rather than risk them being fractured by unmanaged conflict.