Perry Mason. Atticus Finch. Ally McBeal. Lawyers try cases, right?

Until you entered law school, you may have shared the common perception that lawyers spend most of their time in the courtroom arguing on behalf of their clients. Not only do many lawyers never try a case, but in the past several decades, the means for resolving disputes have expanded well beyond traditional adversarial litigation. Alternative dispute resolution, which encompasses a range of processes, has become both widely available and extensively used. In fact, in many states, most litigants must make a mandatory ADR stop along the road to the courtroom. In recent years, ADR, sometimes called "appropriate dispute resolution," has become a standard feature of essentially every lawyer's work. Contemporary lawyers also encounter mandatory ADR requirements outside the context of court-annexed ADR. Commercial contracts, employment agreements, and real estate contracts commonly require the contracting parties to settle disputes through ADR rather than through formal litigation. What is ADR? ADR processes have their roots in the dispute resolution systems of non- Western cultures, which often emphasize community healing rather than individual rights. The recent growth of ADR has been prompted primarily by the shortcomings of the adversarial litigation system. In a 1984 address to the ABA, then-Supreme Court Chief Justice Warren Burger acknowledged that while trials are the only way to resolve some disputes, overall, our adversarial legal system is too costly, painful, destructive, and inefficient. Indeed, ADR processes are designed to reduce both cost and trauma to the parties, and to ease the overwhelming dockets most courts have faced in the past several decades. Aside from the practical concerns of cost and crowded dockets, many ADR proponents envision a transformative approach to resolving disputes. In their view, traditional litigation focuses too much on winning and not enough on problem solving. Further, courts can impose only certain prescribed solutions, mostly involving money. So when a court or jury decides a dispute, the outcome may or may not resolve the underlying issues. In contrast, ADR processes like mediation focus on exploring the parties' "interests" and allow the parties themselves to craft solutions that advance those interests. Thus, ADR fosters flexible, individually tailored results that achieve joint gain for the parties, rather than a win-lose outcome. ADR advocates also argue that by providing a forum in which parties can tell their stories, ADR processes allow the parties to be "heard" during the dispute resolution process. Further, these processes emphasize cooperation and openness rather than

conflict and secrecy, allowing the parties more control over both the process and the outcome. As a result, they satisfy important psychological needs and achieve better-quality justice. ADR: not only for civil litigation ADR processes are not limited to civil litigation. In the criminal arena, some jurisdictions have experimented with the idea of "restorative justice." Restorative justice programs attempt to address the harm criminal behavior causes by involving both offenders and victims in the response. For instance, parties might participate in victim-offender mediation, during which the offender hears the victim's story and has the opportunity to better understand the impact of the offense. A sentence might be imposed through a sentencing circle, during which members of a community discuss the impact of the crime, raise underlying issues, and promote healing. Or offenders might be ordered to make restitution particularly suited to their crimes, allowing them to remedy the damage caused by their actions. Becoming an ADR expert As a lawyer, you will probably be involved in ADR in a representative capacity at some point. But if you are interested in becoming a mediator, an arbitrator, or a neutral evaluator, what should you do? First, recognize that becoming an ADR neutral for any ADR process requires experience and knowledge. Law students do not usually graduate from law school and immediately become ADR practitioners, even if they have taken ADR courses during law school. "It's the classic case of needing the experience to get the job, but needing the job to get the experience," says Hamline University School of Law Professor Bobbi McAdoo, an ADR specialist and practicing mediator. For the most part, she says, mediators and arbitrators are successful lawyers who have shown dispute resolution excellence to their peers. To prepare for a career as an ADR practitioner, she recommends looking for ways to develop relevant skills in your legal practice, including listening skills, the ability to ask appropriate questions, and creativity in solving problems. Carolyn Chalmers, an experienced mediator and director of the University of Minnesota Office for Conflict Resolution, agrees that experience is essential. "If you want to mediate or arbitrate cases with the potential for litigation, you need practice experience. Lawyers choose the mediator, and they look in the legal field," she says. "Even for disputes that are not in litigation or not focused on legal issues, it's not easy to become a mediator unless you have significant life experience that will help you in the mediation process."

While particular subject matter expertise is not an absolute requirement for ADR practitioners, experience in the relevant area of law always helps. Generally, the mediator or arbitrator needs to understand the legal issues sufficiently to structure the conversation, understand what litigation will look like if the parties do not resolve the case, and remain credible with the parties. ADR experts agree that adversarial adjudication serves important purposes, such as generating the rule of law and serving as a last resort when parties themselves cannot resolve their disputes. But ADR is definitely here to stay, as more courts require it and more parties take advantage of the benefits it offers. Law students need to familiarize themselves with basic ADR methods and ideas so they can graduate ready to be competent, knowledgeable professionals. Historical Background of ADR in the Philippines Before the Spaniards discovered the Philippines in 1521, arbitration, as a mode of settling disputes, was practiced in barangays and other forms of village settlements. In those early days, the datu (chieftain) settled the disputes of his constituents, and his decisions were accepted as having authority and finality. Also, the elders and parents acted as arbiters of family quarrels and their decisions were binding upon the parties concerned. The Roots of ADR

when two negotiators, realizing they needed help in this process, accepted the intervention of a third person. If the third party was asked to make a decision or placed the decision in the hands of some arbitrary mechanism, the process was arbitration. Other methods followed: When the third party undertook an investigation that helped bring the matter to closure, this was fact finding. If the matter is brought before the community and all members had to be satisfied with the outcome, we today call that process consensus building. ADR is often thought of as a new way of resolving disputes. In fact, its roots run deep in human history, and they have long played a crucial role in cultures across the globe. ADR in Traditional Societies To trace the roots of ADR, we can turn to anthropological and sociological studies of traditional societies for a glimpse of some of the ways early humans may have resolved disputes without the use of fists, clubs, or poison arrows. Many of these ways of resolving conflicts are starkly alien to our Western way of looking at the world. Nevertheless, they have much to teach us about the utility of conflict in airing the disagreements of everyday life and how to use them as opportunities to deepen relationships and achieve lasting harmony. The Bushmen of Kalahari

The Deciding Stone to the European Law Merchant Two men glare at each other. Long-haired and bearded, their fur garments oily from use, they hold gnarled clubs loosely at their sides. Emotions have been building since the rainy season started and the river overflowed. Who will be forced to brave the swollen river to hunt, and who will hunt near their village? Today it will be decided. With war cries, the disputants raise their clubs and begin to circle. Suddenly an old man appears, shouting: "Behold, the Deciding Stone!" The two men stop in midstride. The old man says, "Ush, the smooth side is yours; Ore, the rough side is yours." The pair hesitate, looking angrily at each other and at the old man, and finally they nod in agreement. With all his might, the old man throws the stone into the air. Their heads turn to the sky as they watch the stone turn over and over. This imagined story of prehistoric times illustrates that while humans have always had the tendency to solve their differences by fighting, they also have recognized the benefits of settling matters peacefully by flipping a coin or some other way. This search for alternatives to violence gave birth to the precursors of alternative dispute resolution (ADR). The most basic form of ADR is negotiation: at its core, two people simply talk about a problem and attempt to reach a resolution both can accept. It follows that mediation started William Ury and others have written extensively about the Bushmen of the Kalahari, a traditional people whose sophisticated system for resolving disputes in many ways puts modern society to shame. The Bushmen are hunter-gatherers living in a large, arid plain in Namibia and Botswana. Despite the encroachment of agrarian people, the Bushmen have largely stuck to their traditional ways of life, including a way of settling disputes that avoids fighting and the courts. The Bushmen are far from a passive people. Rivalries over mates, food, and land are common. But when a dispute arises, they are slow to fight and quick to find others who will intercede. When two people have a problem, they bring others around to hear out both sides. If things get testy, some members of the tribe are appointed to hide the hunters' poison arrows-an early form of gun control. If small-scale intervention fails, the whole group is brought into the process. "When a serious problem comes up," writes Ury (2002), "everyone sits down-all the men, all the women-and they talk, and they talk and they talk. Each person has a chance to have his or her say. It may take two or three days. This open and inclusive process continues until the dispute is literally talked out" (p. 40). The processes involved here include mediation and consensus building. Hawaiian Islanders

Hawaiian islanders of Polynesian ancestry use their own traditional system for resolving disputes amicably. The practice, known as ho'oponopono, involves a family's coming together to discuss interpersonal problems under the guidance of a leader. The common translation of the term is to "set things right" on both a spiritual and interpersonal level. The leader of the session is someone both sides look to with respect. He or she leads the session and acts as mediator. To avoid hard feelings, all discussion is directed toward the leader rather than directly between the disputing parties. The leader opens the session with a prayer, asks questions of the participants, and at times will call for a moment of silence when tempers are running hot or one side is refusing to listen to the other (Boggs and Chun, 1990). After hearing out both sides and attempting to get at the heart of the dispute, the leader works to bring about reconciliation. The Kpelle of Central Liberia The Kpelle people of central Liberia have evolved a moot court to resolve family disputes that are too small or intimate for the traditional courts. The sessions, attended by a group of neighbors and family members, are presided over by someone with a kinship tie to the participants and usually political standing in the group. In one typical dispute, a man named Wama Nya had one wife but inherited a second when his brother died. He accused this second wife of cheating on him, staying out late, and denying him some of the food she brought in from the fields. The assembled group listened to the complaints of the man and the first and second wives, offering their opinions as the principals spoke and in side conferences. The process in some ways was therapeutic: it allowed everyone to be heard and to feel that their complaints were legitimate enough for others to take the time to listen to and consider seriously. In the end, the group decided that the husband was mostly at fault. He was ordered to bring rum, beer, and food for the entire group and thus reintegrate himself and his family into the community (Gibbs, 1963). The Abkhazian of the Caucasus Mountains In the Caucasus Mountains of Georgia in the former Soviet Union, the Abkhazian people have long practiced mediation by elders to resolve disputes within their group and among the tribes in the surrounding areas. The mediators are generally respected elders, usually male but sometimes female. The disputing sides tend to call in mediation after a cycle of revenge has allowed each side to feel that it has exacted equal retribution but before any reconciliation has been achieved. In one case, a drunken argument between members of different families had led to violence. The mediators essentially shamed the two sides into a reconciliation, which was followed up by a joint feast. This feast of reconciliation, according to participants, cements family bonds and is considered more sacred than any court document (Garb, 1996).

Interestingly, Abkhazian reconciliation before World War II had often involved either intermarriage between groups or the adoption of a child from one family into the other, thus creating an extended family link. The bond was dramatized by the new mother's taking the adopted child to her breast-either literally or symbolically. At times, an adult male seeking to end a dispute would steal into the home of the rival family and attach himself to the breast of his adversary's wife or mother. Sometimes this method would have the desired effect of ending the dispute. Sometimes (perhaps understandably) it would not. The Yoruba of Nigeria In Nigeria, the Yoruba live in modern cities but cling to traditional ways of resolving disputes. When a matter between Yoruba ends up in court, it is generally considered a mark of shame on the disputants: they are viewed as not good people who favor reconciliation. This is not to say that the people do not feel conflict has a place in life. An old Yoruba saying makes this clear: "The tongue and teeth often come in conflict. To quarrel and get reconciled is a mark of responsibility" (Albert, Awe, Herault, and Omitoogun, 1995, p. 9). Disputes at the family level, such as an argument between cowives or between parents and a youth who has run away, are generally brought before the mogaji, the lineage head, and the baale, an elderly head of the district. After the two sides state their case, the elders ask questions and then try to work toward a compromise in which both sides accept some of the blame. The elders have an arsenal of techniques for reaching a settlement: proverbs, persuasion, subtle blackmail, precedent, and even magic. The only real power behind the elders' decisions is cultural: they can threaten social excommunication or use emotional blackmail. Some disputes transcend the family. One unique venue for resolving such disputes is a television program known as So Da Bee, which acts as an informal arbitrator. Land disputes are a common topic. In one case, broadcast in 1995, a blind woman had given a piece of land to a man for farming some twenty years earlier. After the old woman and the farmer died, their heirs, each assuming they held ownership, sold the land to different parties. Through a fact-finding process, the program's arbitrators determined that the agreement between the old woman and the farmer had related only to farming, not full possession of the land. The farmer's heirs were forced to rescind their sale. The traditional head of the Yoruba, known as the Olubadan, also acts as an arbitrator in many disputes. In a 1983 case, two men each sought the title of mogaji of the Sodun family. All internal efforts to resolve the dispute had failed, so the matter was brought before the Olubadan, who sat in council with his most powerful chiefs. After both sides presented their case and were questioned by the council, the situation still could not be

resolved, so the Olubadan ruled that the family would have two mogaji. Mediation in China China, where the traditional view of dispute resolution has its origin in Confucian ethics, adopted mediation early. Confucius (551-479 B.C.) taught that natural harmony should not be disrupted, and adversarial proceedings were the antithesis of harmony. Since the Western Zhou Dynasty two thousand years ago, the post of mediator has been included in all governmental administrations. Today in China, it is estimated that there are 950,000 mediation committees with 6 million mediators-in fact, there are more mediators per 100 citizens in China than lawyers per 100 people in the United States (Jia, 2002). Given the emphasis on harmony, Chinese mediators have long played a far-reaching role: "Chinese mediation aims not only to respond to a conflict when it breaks out, but also to prevent it from happening.... [It] is a continuous process of being vigilant against any potential threats to harmony, even after the harmony has been built" (Jia, 2002, p. 289). Chinese mediators thus do more than try to settle a dispute and move on: they also instruct the participants in how to have a better relationship for the long term. It would be many, many years before Western practitioners of ADR would catch up to these ideas. Ancient Greek Roots of Arbitration In the Western World, the story of ADR can be traced back to the ancient Greeks. One famous story of arbitration comes down through mythology. The goddesses Juno, Athena, and Aphrodite were squabbling over who was the most beautiful and called on Paris, the royal shepherd, to decide. Paris, it seems, was not above accepting a bribe from Aphrodite, who thus won the contest. But Juno, wife and sister of Jupiter, was not one to forgive and forget. She was so furious at Paris that she unleashed a host of plagues on Aenaes, his fellow Trojan, as the great hero strove to found the new Troy. Thus, one of the classics of Western literature, Virgil's The Aeneid, can be read as a long meditation on the evils wrought by an arbitration gone awry. Arbitration was not simply a matter of mythology to the ancient Greeks. As Athenian courts become crowded, the city-state instituted the position of public arbitrator some time around 400 B.C. (Harrell, 1936). According to Aristotle, all men served this function during their sixtieth year, hearing all manner of civil cases in which the disputants did not feel the need to go before the more formal, and slow, court system. The decision to take a case before an arbitrator was voluntary, but the choice of being an arbitrator was not. Unless he happened to be holding another office or traveling abroad, any eligible man selected to serve as an arbitrator was required to do so; if he refused, he would lose his civil rights (Harrell, 1936). The procedures set up by the Greeks were surprisingly formal. The arbitrator for a given case was chosen by lottery. His first

duty was to attempt to resolve the matter amicably. This failing, he would call witnesses and require the submission of evidence in writing. The parties often engaged in elaborate schemes to postpone rulings or challenge the arbitrator's decision. An appeal would be brought before the College of Arbitrators, which could refer the matter to the traditional courts. In one such appeal process, Demosthenes had alleged that one Midias had used disrespectful language toward Demosthenes and his family. Midias took legal steps to put off the decision by the arbitrator, Straton, including failing to show up on the day the final decision was to be rendered, but Straton ruled against him. Although the official record is incomplete, Midias successfully appealed the decision before the College of Arbitrators, and Straton was expelled from the board. This outcome may seem a setback for arbitration at a very early stage, but it can also be read as an example of a strong self-policing mechanism. A traditional judge later upheld the board's censure of the arbitrator. The system, it seemed, had worked. Both Aristotle (384-322 B.C.) and Cicero (106-43 B.C.) commented favorably on arbitration in words that certainly could be used to describe modern arbitration. They made clear that arbitration was an alternative to the courts. Aristotle said arbitration was introduced to "give equity its due weight, making possible a larger assessment of fairness" (Aristotle). Cicero said a trial is "exact, clear-cut, and explicit, whereas arbitration is mild and moderate" (Cicero). He added that a person going to court expects to win or lose; a person going to arbitration expects not to get everything but not to lose everything either. What Is ADR? The term "alternative dispute resolution" or "ADR" is often used to describe a wide variety of dispute resolution mechanisms that are short of, or alternative to, full-scale court processes. The term can refer to everything from facilitated settlement negotiations in which disputants are encouraged to negotiate directly with each other prior to some other legal process, to arbitration systems or minitrials that look and feel very much like a courtroom process. Processes designed to manage community tension or facilitate community development issues can also be included within the rubric of ADR. ADR systems may be generally categorized as negotiation, conciliation/mediation, or arbitration systems. Negotiation systems create a structure to encourage and facilitate direct negotiation between parties to a dispute, without the intervention of a third party. Mediation and conciliation systems are very similar in that they interject a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Mediators and conciliators may simply facilitate communication, or may help direct and structure a settlement, but they do not have the authority to decide or rule on a settlement. Arbitration systems authorize a third party to decide how a dispute should be resolved.

It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation, and conciliation programs are non-binding, and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. It is also important to distinguish between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate, or arbitrate prior to court action. ADR processes may also be required as part of a prior contractual agreement between parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. Taxonomy of ADR Models from the Developed and Developing World Alternative Dispute Resolution (ADR) includes practices, techniques and approaches for resolving and managing conflicts short of, or alternative to, full-scale court process. The variety of ADR models found in developed and developing countries may be described in two fundamental ways: basic ADR processes, which include negotiation, conciliation, mediation, and arbitration; and hybrid ADR processes, in which specific elements of the basic processes have been combined to create a wide variety of ADR methods (e.g., mediation is combined with arbitration in med-arb.). Hybrid ADR processes may also incorporate features found in court-based adjudication; for example, the minitrial mixes an adjudication-like presentation of arguments and proofs with negotiation. This taxonomy provides definitions of basic and hybrid ADR methods used in private, governmental, and court-connected ADR. The definitions reflect common usage among ADR professionals, the majority of whom are from developed countries. Wherever possible, an example of a country which has implemented individual ADR models is indicated, along with a short citation to a relevant case study or document in the Working Bibliography for further reference. While this taxonomy is not a catalogue of traditional or indigenous dispute resolution methods, an effort has been made to direct readers to developing world examples in which features of traditional dispute resolution have been incorporated in ADR. Definitions of ADR Models I. Basic ADR Models A. Negotiation: The most common form of dispute resolution, negotiation is the process by which the parties voluntarily seek a mutually acceptable agreement to resolve their common dispute. Compared with processes involving third parties, generally

negotiation allows the disputants themselves to control the process and the solution. Examples: Nicaragua negotiation training (Lytton 1997); South Africa Case Study negotiation of community disputes; Indonesia environmental conflict (Moore 1995). B. Conciliation: A process in which a third party meets with the disputants separately in an effort to establish mutual understanding of the underlying causes of the dispute and thereby promote settlement in a friendly, unantagonistic manner. Often the first step, and at times sufficient, to resolve disputes. Examples: South Africa Case Study Commission for Conciliation, Mediation, and Arbitration; Bolivia Case Study; Colombia Bogota Chamber of Commerce centers (DPK Consulting 1994); U.S.A. historically used in some labor disputes as a step prior to arbitration; India People's Courts "Lok Adalat" (Whitson 1992); Japan auto accident victims and insurance companies (Moriya 1997) (NB: some practitioners use the term "conciliation" to describe processes that range from the above definition of conciliation to mediation.) C. Mediation: A voluntary and informal process in which the disputing parties select a neutral third party (one or more individuals) to assist them in reaching a mutually-acceptable settlement. Unlike a judge or arbitrator, the mediator has no power to impose a solution on the disputants; instead, the mediator assists them in shaping solutions to meet their interests. The mediator's role and the mediation process may vary significantly, depending on the type of dispute and mediator's approach. Mediators can employ a wide-range of techniques, e.g.: assist parties to communicate effectively and to develop a cooperative, problem-solving attitude; identify parties' underlying interests; identify and narrow issues; transmit messages between parties; explore possible options for agreement and the consequences of non-settlement. Examples: South Africa Case Study IMSSA, victimoffender mediation; Sri Lanka Case Study Mediation Boards; Indonesia environmental disputes (Moore 1995); Malaysia inter-ethnic disputes (Othman 1996); India civil and criminal cases (Kassebaum 1989);USA community mediation (McGill 1997), mandatory civil case mediation in North Carolina (Clarke et al. 1995); Bangladesh Case Study community mediation based on indigenous practice. D. Arbitration: An adjudicatory dispute resolution process in which one or more arbitrators issues a judgment on the merits (which may be binding or non-binding) after an expedited, adversarial hearing, in which each party has the opportunity to present proofs and arguments.

Arbitration is procedurally less formal than court adjudication; procedural rules and substantive law may be set by the parties. In court-annexed arbitration, one or more arbitrators, usually lawyers, issue a non-binding judgment on the merits after an expedited, adversarial hearing. The arbitrator's decision addresses only the disputed legal issues and applies legal standards. Either party may reject the non-binding ruling and proceed to trial; sometimes, cost sanctions may be imposed in the event the appellant does not improve his/her position in court. This process may be mandatory or voluntary. Examples: USA used in federal and state courts, mainly in small and moderate-sized tort and contract cases, where the costs of litigation are often much greater than the amounts at stake; Japan appellate ADR (Iwai 1991); Bolivia Case Study pilot project. Private (v. court-annexed) arbitration may be "administered" managed by private organizations, or "non-administered" and managed by the parties. The decisions of arbitrators in private arbitration may be non-binding or binding. Binding arbitration decisions typically are enforceable by courts and not subject to appellate review, except in the cases of fraud or other defect in the process. Often binding arbitration arises from contract clauses providing for final and binding arbitration as the method for resolving disputes. Examples: South Africa Case Study IMSSA; Thailand commercial arbitration (Worawattanamateekul 1996); Bolivia case study Chambers of Commerce centers. II. Examples of Hybrid ADR Models A wide variety of hybrid models have emerged in developed and developing countries. Below are some examples of hybrids found connected to courts in commercial and government settings. Appellate ADR: Appellate court programs use mediation in mandatory, pre-argument conferences in cases that appear most likely to settle; mediators are typically staff attorneys or outside lawyers. Example: USA common in federal and state appeals courts. Early Neutral Evaluation (ENE): A court-based ADR process applied to civil cases, ENE brings parties and their lawyers together early in the pretrial phase to present summaries of their cases and receive a nonbinding assessment by an experienced, neutral attorney with expertise in the substance of the dispute, or by a magistrate judge. The evaluator may also provide case planning guidance and settlement assistance; in some courts, it is used purely as a settlement device and resembles evaluative mediation.

Example: USA Developed during the mid-1980s in the San Francisco federal court, ENE is now used in the U.S. in state and federal courts. Fact-Finding: A process by which a third party renders binding or advisory opinions regarding facts relevant to a dispute. The third party neutral may be an expert on technical or legal questions, may be representatives designated by the parties to work together, or may be appointed by the court. Judge-Hosted Settlement Conference: In this court-based ADR process, the settlement judge (or magistrate) presides over a meeting of the parties in an effort to help them reach a settlement. Judges have played a variety of roles in such conferences, articulating opinions about the merits of the case, facilitating the trading of settlement offers, and sometimes acting as a mediator. Examples: USA This is the most common form of ADR used in US federal and state courts; Japan judge as neutral may implement three ADR procedures (Jardine 1996). Med-Arb or Mediation-Arbitration: An example of multi-step ADR, parties agree to mediate their dispute with the understanding that any issues not settled by mediation will be resolved by arbitration, using the same individual to act as both mediator and arbitrator. Having the same individual act in both roles, however, may have a chilling effect on the parties participating fully in mediation. They might believe that the arbitrator will not be able to set aside unfavorable information learned during the previous mediation. Additional related methods have evolved to address this problem. In Co-Med-Arb, different individuals serve as neutrals in the arbitration and mediation sessions, although they both may participate in the parties' initial exchange of information. In ArbMed, the neutral first acts as arbitrator, writing up an award and placing it in a sealed envelope. The neutral then proceeds to a mediation stage, and if the case is settled in mediation, the envelope is never opened. Minitrial: A voluntary process in which cases are heard by a panel of high-level principals from the disputing sides with full settlement authority; a neutral may or may not oversee this stage. First, parties have a summary hearing, each side presenting the essence of their case. Each party thereby can learn the strengths and weaknesses of its own case, as well as that of the other parties. Second, the panel of party representatives attempts to resolve the dispute by negotiation. The neutral presider may offer her opinion about the likely outcome in court. Court-based minitrial: a similar procedure generally reserved for large disputes, in which a judge, magistrate or nonjudicial neutral

presides over a one- or two- day hearing like that described above. If negotiations fail, the parties proceed to trial. Examples: Used in some US federal districts. (CPR 1993, p. 25.)

Examples: USA and Japan useful when litigation has become acrimonious or when suggestion of settlement would be perceived as a sign of weakness (Jardine 1996). The Characteristics of ADR Approaches

Negotiated Rule-Making, Regulatory Negotiation or "Reg-Neg": Used by governmental agencies as an alternative to the more traditional approach of issuing regulations after a lengthy notice and comment period. Instead, "agency officials and affected private parties meet under the guidance of a neutral facilitator to engage in joint negotiation and drafting of the rule. The public is then asked to comment on the resulting, proposed rule. By encouraging participation by interested stakeholders, the process makes use of private parties' perspectives and expertise, and can help avoid subsequent litigation over the resulting rule." (CPR 1993, p. 149.) Ombudsperson: An informal dispute resolution tool used by organizations. A third party "Ombudsperson" is appointed by the organization to investigate complaints within the institution and prevent disputes or facilitate their resolution. The Ombudsperson may use various ADR mechanisms (e.g., factfinding, mediation) in the process of resolving disputes. Examples: Japan Civil Liberties Bureau (Rosch 1987). Private Judging: A private or court-connected process in which parties empower a private individual to hear and issue a binding, principled decision in their case. The process may be agreed upon by contract between the parties, or authorized by statute (in which case it is sometimes called "Rent-a-Judge"). Settlement Week: Typically, a court suspends normal trial activity for the week and with the help of volunteer lawyers, mediates long-pending civil cases. Mediation sessions may last an hour or two. Unresolved cases go back on the court's docket. Examples: USA used more widely in state than federal courts. Summary Jury Trial: A flexible, voluntary or involuntary nonbinding process used mainly to promote settlement in order to avoid protracted jury trials. After a short hearing in which the evidence is provided by counsel in abbreviated form (but usually following fixed procedural rules), the mock jury gives a nonbinding verdict, which may then be used as a basis for subsequent settlement negotiations. Summary Bench Trial: Like summary jury trial, except that presiding neutral provides an advisory opinion. Two-Track Approach: Used in conjunction with litigation, representatives of disputing parties who are not involved in the litigation conduct settlement negotiations or engage in other ADR processes. The ADR track may proceed concurrently with litigation or during an agreed-upon hiatus in litigation.

Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and other forms of community justice vary, all share a few common elements of distinction from the formal judicial structure. These elements permit them to address development objectives in a manner different from judicial systems. 1) Informality Most fundamentally, ADR processes are less formal than judicial processes. In most cases, the rules of procedure are flexible, without formal pleadings, extensive written documentation, or rules of evidence. This informality is appealing and important for increasing access to dispute resolution for parts of the population who may be intimidated by or unable to participate in more formal systems. It is also important for reducing the delay and cost of dispute resolution. Most systems operate without formal representation. 2) Application of Equity Equally important, ADR programs are instruments for the application of equity rather than the rule of law. Each case is decided by a third party or negotiated between disputants themselves, based on principles and terms that seem equitable in the particular case, rather than on uniformly applied legal standards. ADR systems cannot be expected to establish legal precedent or implement changes in legal and social norms. ADR systems tend to achieve efficient settlements at the expense of consistent and uniform justice. In societies where large parts of the population do not receive any real measure of justice under the formal legal system, the drawbacks of an informal approach to justice may not cause significant concern. Furthermore, the overall system of justice can mitigate the problems by ensuring that disputants have recourse to formal legal protections if the result of the informal system is unfair, and by monitoring the outcomes of the informal system to test for consistency and fairness. 3) Direct Participation and Communication between Disputants Other characteristics of ADR systems include more direct participation by the disputants in the process and in designing settlements, more direct dialogue and opportunity for reconciliation between disputants, potentially higher levels of confidentiality since public records are not typically kept, more flexibility in designing creative settlements, less power to subpoena information, and less direct power of enforcement.

The impact of these characteristics is not clear, even in the United States where ADR systems have been used and studied more extensively than in most developing countries. Many argue, however, that compliance and satisfaction with negotiated and mediated settlements exceed those measures for court ordered decisions. The participation of disputants in the settlement decision, the opportunity for reconciliation, and the flexibility in settlement design seem to be important factors in the higher reported rates of compliance and satisfaction. The Limitations of ADR Although ADR programs can play an important role in many development efforts, they are ineffective, and perhaps even counterproductive, in serving some goals related to rule of law initiatives. In particular, ADR is not an effective means to: Define, refine, establish and promote a legal framework. Redress pervasive injustice, discrimination, or human rights problems. Resolve disputes between parties who possess greatly different levels of power or authority. Resolve cases that require public sanction. Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process. A. ADR programs do not set precedent, refine legal norms, or establish broad community or national standards, nor do they promote a consistent application of legal rules. As noted earlier, ADR programs are tools of equity rather than tools of law. They seek to resolve individual disputes on a caseby case basis, and may resolve similar cases in different ways if the surrounding conditions suggest that different results are fair or reasonable according to local norms. Furthermore, ADR results are private and rarely published. As long as some other judicial mechanism exists to define, codify, and protect reasonable standards of justice, ADR programs can function well to resolve relatively minor, routine, and local disputes for which equity is a large measure of justice, and for which local and cultural norms may be more appropriate than national legal standards. These types of disputes may include family disputes, neighbor disputes, and small claims, among others. In disputes for which no clear legal or normative standard has been established, ADR may not be able to overcome power imbalances or fundamental disagreements over norms among disputants. On the other hand, in situations where there is no established legal process for dispute resolution, ADR may be the best possible alternative to violence. For example, in South Africa, a variety of ADR processes used before and during the

transition appear to have prevented violence to some degree and helped set the foundation for peaceful political change. B. ADR programs cannot correct systemic injustice, discrimination, or violations of human rights. As noted above, ADR systems often reflect the accepted norms of society. These norms may include discrimination against certain groups and populations. When this is true, ADR systems may hinder efforts to change the discriminatory norms and establish new standards of group or individual rights. In India, for example, the lok adalats were generally credited with resolving large numbers of cases efficiently and cheaply in the mid-1980s before the system was taken over by the government judiciary. Women, however, did not like the system, especially for family disputes, because resolution of disputes was based on local norms, which were often discriminatory towards women, rather than on more recently defined legal rights. The same was true for members of lower castes. (See Whitson, 1992.) C. ADR programs do not work well in the context of extreme power imbalance between parties. These power imbalances are often the result of discriminatory norms in society, and may be reflected in ADR program results. Even when the imbalance is not a reflection of discriminatory social norms, most ADR systems do not include legal or procedural protections for weaker parties. A more powerful or wealthy party may press the weaker into accepting an unfair result, so that the settlement may appear consensual, but in fact result from coercion. For the same reason, ADR programs may not work well when one party is the government. When the program design has been able to enhance the power or status of the weaker party, ADR has been effective in conditions of discrimination or power imbalance. In Bangladesh, for example, women who have submitted cases of spousal abuse to mediation have found that the village mediation system, which includes women mediators, provides better results than the court system which is even more biased against women in these cases. (See Bangladesh Case Study.) In general, however, ADR programs cannot substitute for stronger formal protections of group and class rights. D. ADR settlements do not have any educational, punitive, or deterrent effect on the population. Since the results of ADR programs are not public, ADR programs are not appropriate for cases which ought to result in some form of public sanction or punishment. This is particularly true for cases involving violent and repeat offenders, such as in many cases of domestic violence. Societal and individual interests may be better served by court sanctioned punishment, such as imprisonment.

It is important to note, however, that victim offender mediation or conciliation may be useful in some cases to deal with issues unresolved by criminal process. E. It is inappropriate to use ADR to resolve multi-party cases in which some of the parties or stakeholders do not participate. This is true because the results of most ADR programs are not subject to standards of fairness other than the acceptance of all the participants. When this happens, the absent stakeholders often bear an unfair burden when the participants shift responsibility and cost to them. ADR is more able than courts to include all interested stakeholders in disputes involving issues that affect many groups, such as environmental disputes. When all interested parties cannot be brought into the process, however, ADR may not be appropriate for multi-stakeholder public or private disputes. Alternative Dispute Resolution Approaches and their Application Conflicts have existed in all cultures, religions, and societies since time immemorial, as long as humans have walked the earth. In fact, they also exist in the animal kingdom. Philosophies and procedures for dealing with conflicts have been part of the human heritage, differing between cultures and societies. Nations, groups, and individuals have tried throughout history to manage conflicts in order to minimize the negative and undesirable effects that they may pose. Conflicts can develop in any situation where people interact, in every situation where two or more persons, or groups of people, perceive that their interests are opposing, and that these interests cannot be met to the satisfaction of all the parties involved. Because conflicts are an integral part of human interaction, one must learn to manage them, to deal with them in a way that will prevent escalation and destruction, and come up with innovative and creative ideas to resolve them. Dealing with conflicts conflict management, or conflict resolution, as it has come to be called in professional circles is as old as humanity itself. Stories of handling conflicts and the art of managing them are told at length throughout the history of every nation and ethnic group who share the same history. Conflicts have been recorded from the very early days of humankind. We find in The Bible and similar religious and historical documents in different cultures an account of conflicts that were resolved by various processes, including negotiation, mediation, arbitration, and adjudication. We also find accounts of various types of negotiations: between animals and humans, between two persons, between an individual and a group, between two groups, and between humans and God. The first negotiation in The Bible was between the snake and Eve, over the apple in the Garden of Eden. But not all conflicts in religious scriptures have been resolved by alternative/appropriate dispute resolution (ADR). One that was resolved by force and violence

is the story of Cain and Abel. In The Bible we find among many stories of conflicts and their resolution, the story of Abraham and Lot negotiating, where Abraham, in order to avoid a fight, offers Lot a deal that Lot cannot refuse. Negotiation was conducted not only between people, but also between humans and God. Abraham negotiated with God over the fate of the people of Sodom and Gomorra. God also acted as a mediator between Abraham and Sara when she wanted Abraham to expel Hagar and her son. In the Muslim tradition we find the story of Muhammad who negotiated with God over the number of times that the followers will pray. Muhammad managed to reduce the number from the initial fifty times a day down to five, using as his main argument the necessity to leave enough time for people to do things other than pray. Throughout history, individuals and groups used a variety of ways to resolve their disputes, trying to reach a resolution acceptable to all parties. There is a common belief in all cultures that it is best to resolve disputes and to reach an agreed end to them, because conflict is a destructive force. In the twentieth century many reached the understanding that disputes are normal in human society, and not necessarily destructive, and that if they do not get out of hand they may have within them a potential for growth, maturity, and social changes, an opportunity for new ways of thinking and new experiences. Because conflicts are an integral part of human interaction, one should learn to manage them: to deal with them in a way that prevents escalation and destruction, and arrives at new, innovative, and creative ideas to resolve them. Much can be learned about the different ways in which conflicts have been prevented in the past. In older societies, resolving disputes was considered a unique ability reserved for the wise and the elders of the community or for religious leaders. More recently, conflict prevention has become a primary focus of interest for everyone, and this has resulted in an ever-expanding field of study and practice. The field of conflict resolution gained momentum in the last three decades of the twentieth century. It has developed into a widely accepted field of study, where skills and strategies are being taught, and changes in philosophical attitudes occur through training and enhanced self-awareness. The increasing academic activity and practical training initiatives have generated a vast and expanding body of research and publications. The field is characterized by diversity and complexity. It is diverse because conflicts exist in every facet of individual and social life: between business partners, employers and employees, among employees, between trading partners, among neighbors, between parents and their children, husbands and wives, an individual and society, and between countries.

The discipline is complex because it deals with conflicts at different stages of their existence, and also because it is a mix of theory and practice, and of art and science, as Howard Raiffa demonstrated so brilliantly in his book The Art and Scienceof Negotiation (1982). The science is the systematic analysis of problem solving, and the art is the skills, personal abilities, and wisdom. Some conflicts may not be resolved easily, and can last many years. Sometimes these conflicts persist in spite of the fact that they cause heavy losses of resources, and even human life. According to a study at Stanford University (Arrow et al., 1995) there are three categories of barriers to resolving conflicts: . Tactical and strategic barriers; these stem from the parties efforts to maximize short or long term gains.

A dispute between Israel and Egypt over the location of the border between the two countries in the Gulf of the Red Sea was settled in favor of Egypt by an international arbitration panel, on September 29 1988. Israel had to return the town of Taba, a resort town near Eilat, to Egypt as a result of the arbitration. Adjudication is another method that can be used as an alternative in the international arena (The International Court in The Hague) and in the national local system. The courts have the ability to enforce the law in the case of a failure of the parties to reach agreement through negotiation or mediation. There is a law, and a way to enforce it without the consent of the parties. In international disputes, where states are involved, when problems arise due to opposing interests, such as security and/or resources, an outside enforcer cannot act where it is not acceptable to one or more of the parties involved. Ruling by the International Court can end the conflict only if the two countries agree to abide by its ruling. Conflict Analysis 1.1: Challenges in Contemporary Conflict The End of the Cold War

. Psychological barriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one another. . Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that are in the interests of the parties in dispute. A conflict may store within it the potential for a future major dispute, but at the same time it also contains the possibility of future creative cooperation, provided the parties seek what is called the winwin solution.. To accomplish this, one must learn to negotiate in a manner that is less competitive and adversarial, thereby invoking the potential for cooperation. By working together as joint problem solvers. seeking joint solutions and not working against one another, the participants can enlarge the pie. that is to be divided. This can be done either by negotiation, or with the help of an impartial third party who will act as mediator. Third-party intervention is used when a negotiation reaches an impasse. It is used to restore belief in the possibility of a beneficial resolution for the parties, future dialogue, and restored relationships, while leaving the control over the decisions with the parties. President Carter acted as a mediator between President Sadat of Egypt and Prime Minister Begin of Israel. Former US Senator George Mitchell acted as a mediator in Northern Ireland. An outside third party, whether a person (Archbishop Desmond Tutu), a group of people, a representative of a state (Henry Kissinger), or an international organization (The Vatican, The

The end of the Cold War brought relief and optimism to people throughout the world. Former adversaries made major reductions in their conventional and nuclear arms. New leaders found ways to cooperate on a range of international issues. As the specter of nuclear confrontation began to fade, many held hope that this spirit of cooperation might set a precedent, that absent the context of superpower rivalry, nations of the world might find a new willingness to work together, as an international community, to resolve conflicts through peaceful negotiations and diplomacy. Yet events over the next decade proved this optimism premature. The Genocide in Rwanda For example, in 1994, just three years after American and Russian leaders signed the first Strategic Arms Reduction Treaty (START I), the international community failed to provide a coherent response to the genocide in Rwanda. The nature and scale of this genocide have prompted substantial study and analysis, along with deep soul-searching among policymakers and observers. In an attempt to eliminate Rwanda's Tutsi minority, the Hutu majority systematically slaughtered 800,000 individuals, most of them civilians, in just 100 days, a rate of

The field of conflict resolution. has matured as a multidisciplinary field involving psychology, sociology, social studies, law, business, anthropology, gender studies, political sciences, and international relations.

UN) can act as a mediator, in an attempt to help the parties reach an understanding, and an agreed solution to the conflict. A third party, a neutral, can also act as an arbitrator, hear the parties arguments and reach a decision which can be binding, or non-binding according to the agreement made beforehand.

killing that rivals the worst in human history. Armed with machetes, the killers were both vicious and organized, torturing their victims, murdering them in cold blood, and dumping their bodies in mass graves. In numerous cases, such killing took place while international peacekeepers stood by helplessly. The Rwandan genocide exposed glaring weaknesses in the capacity of international and multilateral institutions to prevent or respond to such violence, while raising troubling questions about international willingness to do so. The Conflict in Kosovo In a number of former communist countries, the end of the Cold War acted to trigger conflict, as long-standing internal divisions boiled to the surface in the sudden absence of singleparty rule. For the most part, the countries of Eastern and Central Europe managed their transitions without violence. The one exception was Yugoslavia, which disintegrated in a series of violent conflicts, including conflicts in Croatia, Bosnia, and Kosovo. In contrast to its response in Rwanda, the international community acted decisively in Kosovo; nevertheless, the effort was delayed and often lacked coordination, and the conflict took a devastating human toll. Ethnic cleansing and other atrocities in Kosovo resulted in an estimated 10,000 civilian deaths, over 1.5 million internally displaced persons and refugees, burning of homes, use of human shields in combat, rape as an instrument of war, and summary executions. Intensity of Conflict after the Cold War In the intensity of violence, to what extent have the conflict in Kosovo and the genocide in Rwanda been representative of other conflicts after the Cold War? Ethnic Violence

Interstate War Throughout the 1990s and into the 21st century, the possibility of major interstate war has continued to loom in such diverse places as Korea and Kashmir. Two large interstate wars have taken place in Iraq. Whether in the diplomatic community, the military, international civilian police, or nongovernmental organizations, those who work in areas of conflict have had to ask themselves a fundamental and potentially disturbing question: has the intensity of conflict actually increased since the end of Cold War? In the early 1990s, the statistics were not encouraging. With 93 wars in 70 countries, the period from 1990 to 1995 was twice as lethal as any decade since World War II. In fact, of the estimated 22 million people who have died in conflicts since 1945, onequarter of those deaths occurred in the early 1990s. The late 1990s saw a decline in violence. The end of apartheid in South Africa, some progress towards peace in the Middle East, and a general worldwide trend toward democratic governance raised hopes once again that conflicts might be easier to manage in the new century. However, these hopes were tempered by several events, including the crisis in the peace process in the Middle East and the terrorist threat that brutally made itself manifest on September 11, 2001. Shifting Trends after the Cold War While tracking the intensity of violence, practitioners in conflict management have also noted shifts in the types of conflict prevalent since the end of the Cold War. While interstate conflict continues, intrastate conflict has grown in prominence. In their efforts to develop effective interventions, many have wondered if a further set of questions might help them respond to the dynamics of post-Cold-War conflict. Interstate Intrastate

The genocide in Rwanda was one of the worst cases of ethnic violence in world history. On a smaller but still substantial scale, ethnic violence cost lives in countries such as Burundi, Yemen and Ethiopia. The collapse of authoritarian communism unleashed latent ethnic violence in many societies besides Croatia, Bosnia and Kosovo. Other conflicts include Georgia, Armenia/Azerbaijan and Chechnya. Civil Violence Since the end of the Cold War, civil violence has cost lives in nations across the globe, including East Timor, Guatemala, Colombia and Somalia. Civil war continued in Cambodia, Sudan and Angola, and broke out in Liberia, enmeshed in broader international conflicts. Many more examples could be cited.

For example, in the era of superpower rivalry, conflictmanagement practitioners often focused on conflicts between states. In the aftermath of the Cold War, must they focus more intently on conflicts within states, as well as hybrid situations such as Liberia? Professional Armies Militias Next to professional armies, are militias growing in importance? How about private military organizations? Territorial Aims Ethnicity/Identity Are there shifts in the balance of the motives for conflict? Are territorial aims growing less prominent, compared to motives more related to ethnicity and identity? To what extent are

ethnicity and identity used as a cover for more traditional war aims? Military Casualties Civilian Casualties Are we seeing more civilian casualties in comparison with military casualties? Sophisticated Weapons Systems Simple, Lethal Weapons While advanced states the U.S. above all continue to develop ever more sophisticated weapons systems, many combatants are relying on simple weapons that can be every bit as lethal. What is the status of weapons of mass destruction (nuclear, chemical, biological)? 1.2: Tools of Conflict Analysis Questions such as theseand, more generally, questions concerning the nature of conflictare the principal focus of the field of conflict analysis. XXX (T)wo tools used by practitioners in their work in conflict analysis: The Curve of Conflict The curve of conflict is a visual tool that helps illustrate how conflicts tend to evolve over time. The curve helps in conceptualizing how different phases of conflict relate to one another, as well as to associated kinds of third-party intervention. Practitioners use this knowledge in the determination of effective strategies for intervention, along with the timing of those strategies. Analytical Framework Where the curve of conflict helps in analyzing the evolution of a conflict, the analytical framework helps provide insights into the various forces driving a conflict at a particular moment. With resources that are often limited, practitioners use the framework to help determine where they can apply their influence most productively. 2: The Curve of Conflict Terms and Concepts As in any rigorous field of inquiry, the systematic study of conflict requires learning a challenging array of complex terms and concepts. Terms such as "durable peace," "stable peace" and "unstable peace" are used to describe the state of a relationship between nations or groups within nations. As a potential conflict develops, these terms are used to describe different phases in a changing relationship.

"Preventive diplomacy," "crisis diplomacy" and related terms describe general categories of action appropriate for various phases of conflict. In a further complication, different terms are sometimes used to describe the same concept. For example, while "preventive diplomacy" is an expression that might be used in discussions at the United Nations, "conflict prevention" might be used as an equivalent expression in academic literature. In his insightful book Preventing Violent Conflicts, Michael Lund introduces the Curve of Conflict, a conceptual model that illustrates how conflict can be both violent and non-violent, and how the use of force in violent conflict tends to rise and fall over time. The curve also helps organize terms and concepts used by conflict management professionals, showing how a conflict's different phases relate to one another and to various kinds of third-party intervention. The Curve of Conflict In his book, Lund explains how the curve is derived: "The course of disputes that become violent conflicts is traced in relation to two dimensions: the intensity of conflict (the vertical axis) and the duration of conflict (the horizontal axis)." Lund continues, The line that forms an arc from left to right across the diagram portrays the course of a conflict as it rises and falls in intensity over time. Its smoothly curving bell shape is oversimplified to characterize an 'ideal type' life history. As suggested by the arrows that deviate from the line, the course of actual conflicts can exhibit many different long and short lifehistory, trajectories, thresholds, reversals, and durations. Even conflicts that have abated can re-escalate. Nevertheless, the model has heuristic value in allowing us to make certain useful distinctions among the conflict management interventions that relate to different levels of intensity. The column on the left describes relations between parties to the dispute and is divided into various phases of peace or conflict, Durable Peace, Stable Peace, Unstable Peace, Crisis, and War with lower intensity phases characterized by what Lund calls interactive, mutually accommodative behavior, such as debates and negotiations and higher intensity phases characterized by unilateral, coercive behavior, such as ultimatums, sanctions and physical force. The best way to understand the model is to take a close look at each of these phases. 2.1: Durable Peace Durable Peace is the first phase on the curve. As its name implies, durable peace is a lasting peace. Plotted over time, it is represented as a relatively long, flat line. Lund explains, Durable (or Warm) Peace involves a high level of reciprocity and cooperation, and the virtual absence of self-

defense measures among parties, although it may include their military alliance against a common threat. A positive peace prevails based on shared values, goals, and institutions (e.g. democratic political systems and rule of law), economic interdependence, and a sense of international community. These terms apply to both interstate and intrastate contexts. Lund points to relations between the United States and Canada in the 20th Century as an example of durable peace, as well as to relations among countries of the European Union. He cites constitutional democracy as a domestic manifestation of durable peace. Even in a state of durable peace, disagreements will arise on any number of issues, but these disputes will be resolved through Peacetime Diplomacy or Politics, whose objectives include maintaining and strengthening stable relations and institutions. 2.2: Stable Peace The term Stable Peace describes a state of relations that is higher in its degree of tension than that of durable peace. As Lund explains, Stable (or Cold) Peace is a relationship of wary communication and limited cooperation (e.g. trade) within an overall context of basic order or national stability. Value or goal differences exist and no militarycooperation is established, but disputes are generally worked out in nonviolent, more or less predictable ways. The prospect for war is low. Lund gives several examples of stable peace, including US-Soviet detente in the late 1960s, current US-Russian relations, IsraelPLO accommodation in 1994, and US Chinese relations in 1995. As these examples suggest, the stability should not be taken for granted. Domestic equivalents of stable peace involve "national political compacts among competing, sometimes hostile political factions," as in South Africa from 1994-1995. As in durable peace, the mechanism for resolving disputes is still termed Peacetime Diplomacy of Politics. 2.3: Unstable Peace If disputes remain unresolved and tensions continue to rise, the conflict may over time enter a phase known as Unstable Peace. Lund states, Unstable Peace is a situation in which tension and suspicion among parties run high, but violence is either absent or only sporadic. Anegative peace prevails because although armed force is not deployed [or employed], the parties perceive one another as enemies and maintain deterrent military capabilities... A balance of power may discourage aggression, but crisis and war are still possible. According to Lund, the relationship between the US and Iran in 1995 provides a good example of unstable peace. Domestic versions of unstable peace include government repression of opposition groups, as in Myanmar (Burma) in 1995.

Initiatives taken to defuse tension during a period of unstable peace are termed Preventive Diplomacy and Conflict Prevention, whose objectives include reducing tensions, resolving disputes, defusing conflicts and heading off crises. If the efforts are successful, tensions will subside. 2.4: Crisis However, if preventive diplomacy and crisis prevention are not successful, tensions may continue to rise. Through various types of confrontation, relations may reach the phase of Crisis. As Lund explains, Crisis is tense confrontation between armed forces that are mobilized and ready to fight and may be engaged in threats and occasional low-level skirmishes but have not exerted any significant amount of force. The probability of the outbreak of war is high. For examples, Lund points to the Cuban missile crisis in 1962, as well as relations in Bosnia in 1996. Continuing political violence, such as that seen in Colombia in 1995 and later, is a domestic equivalent of the crisis phase. Initiatives taken to diffuse tension during a period of crisis are termed Crisis Diplomacy and Crisis Management, whose objectives include containing crises and stopping violent or coercive behavior. 2.5: War If efforts at crisis diplomacy are not successful, there may be an outbreak of violence, and the conflict may enter the phase of War. Lund explains, War is sustained fighting between organized armed forces. It may vary from low-intensity but continuing conflict or civil anarchyto all-out hot war. Once significant use of violence or armed force occurs, conflicts are very susceptible to entering a spiral of escalating violence. Each side feels increasingly justified to use violence because the other side is. So the threshold to armed conflict or war is especially important. As Lund points out, the term is used not only for major conflicts such as Vietnam and World War II, but also smaller ones such as Chechnya in early 1995 and later. Lund gives Somalia in early 1992 and Algeria in 1995 as examples of the type of civil anarchy that can be described as war. Efforts by outside parties at ending hostilities are known as Peacemaking or Conflict Management. If an agreement to end hostilities has been reached, such outside parties might then engage in Peace Enforcement or Conflict Mitigation. 2.6: Post-War If efforts at peacemaking and peace enforcement are successful, fighting will subside. There may be a cease-fire, which may help reduce tensions and move the relationship from a state of war back simply to a state of crisis.

At this point, efforts to keep the conflict from re-escalating are typically called Peacekeeping and Conflict Termination. As the result of a settlement, the parties may begin the difficult processes of Conflict Resolution and Post-Conflict Peace Building. Through such efforts, tensions can be reduced to a point where the relationship can be described as a stable peace or even a durable peace. Such movement is difficult but not impossible. Lund gives Bosnia in 1996 as an example of a conflict that moved from war to crisis, Cambodia in 1995 as a conflict that moved from crisis to unstable peace, and South Africa in 1995 as a conflict that moved from unstable peace to stable peace. However, as Lund has pointed out, hard-won arrangements can also unravel. For any number of reasons, tensions can and often do reescalate. The skills of the practitioner are just as important in consolidating peace and preventing recurrence of violence as they are in keeping a conflict from growing violent in the first place. 5: Analytical Framework Complementary Tools In the same way that the curve of conflict provides a structured way of looking at a conflict's history, the analytical framework provides a rigorous method for studying a conflict at a particular point in time. The framework is derived from Democracy and Deep-Rooted Conflict: Options for Negotiators [copyright International Institute for Democracy and Electoral Assistance (International IDEA), 1998, http://www.idea.int/]. The framework is a verbal tool consisting of a series of questions organized along five key themes: Actors Who are the primary actors in the conflict? Who are the secondary actors? Who else has influence over events? Root Causes What is driving the conflict? What are the needs and fears of each group? Issues, Scope and Stage What are the key issues for each side? What phase is the conflict in? Who is suffering the most? Power, Resources and Relationships

What are the resources and capacities of each side? What is the state of the relationship among the leaders? What are the existing channels of communication? History of the Relationship Did the parties ever co-exist peacefully? What were the previous attempts at a settlement, and why did they fail? Was there a pattern to the failures? This list of questions is not finalno such list could be. For a particular conflict, some questions will be more useful than others; in fact, additional frameworks have been written tailored to specific types of conflicts. Of course, a probing analyst will continually find new questions to ask. This framework is intended as a starting point, as a minimum series of questions that should be asked for any conflict. In the pages that follow, we will apply this framework to the conflicts in Rwanda and Kosovo. In both cases, we will focus on that point of the conflict just prior to the outbreak of major hostilities, in Rwanda at the beginning of April, 1994, and in Kosovo at the end of December, 1997. xxx 5.1: Actors Analysts usually begin by identifying the actors in a conflict. In addition to governments, actors might include international organizations and financial institutions, as well as identity groups, factions within groups, single-issue groups, external actors, potential peacemakers, and potential spoilers. Within groups, analysts usually distinguish between top leadership, middle-range leadership, and grassroots leadership. Who Are the Primary Actors? Primary actors are normally thought of as those directly involved in the conflict. In Kosovo, primary actors included the Serb side led by Slobodan Milosevic, the Democratic League of Kosovo and its "shadow government" led by Ibrahim Rugova, and the Kosovo Liberation Army. In Rwanda, primary actors included the multi-party government led by moderate Hutu, the hard-line Hutu Power leadership, the Hutu-led Rwandan Armed Forces, and the Tutsi-led Rwandan Patriotic Front. Who Are the Secondary Actors? Secondary actors are not actual parties to the conflict but nevertheless have a high degree of interest in and influence over it, often due to their proximity. In Kosovo, secondary actors included the Republic of Albania and the ex-Yugoslavian Republics, particularly Macedonia and Montenegro with their large Albanian populations. In Rwanda, one very important secondary actor was Radio Television Libre des Milles Collines (RTLM), the station that urged the killing of Tutsi and moderate Hutu over the airwaves.

Who Are Other Parties with Influence over Events? In addition to primary and secondary actors, analysts consider other parties with interests in and influence over events, including regional and global players. In Rwanda, regional actors included Uganda and Tanzania. International actors with influence included the United Nations, the United States, Belgium and France. In Kosovo, the United States, the United Kingdom, Russia, Germany, France, and Italy formed the Contact Group, which had considerable influence over events. International organizations with influence included the United Nations, the Organization for Security and Cooperation in Europe, the European Union and NATO. 5.2: Root Causes In every conflict, the actors, particularly the primary actors, raise various grievances. For conflicts such as those in Rwanda and Kosovo, analysts look beyond the stated grievances in an attempt to determine root causes, some of which are listed below. What is driving the conflict? What are the needs and fears of each group?

Analysts study how root causes manifest themselves in contemporary issues. Analysts also determine the phase and intensity of the conflict. What are the key issues for each side? In Rwanda, the main issue prior to the genocide was implementation of the Arusha Accords by the Hutu-led Government. The accords, signed in Arusha, Tanzania, in 1993, would have provided for the return of the Tutsi refugees and led to a power sharing arrangement between the Government and the Tutsi-led Rwandan Patriotic Front. The President and the hard-line Hutu were accused of blocking implementation of an agreement that they contended would have given a disproportionate share of power to the RPF. In Kosovo, the key issue was the governance of Kosovo: to what degree the majority Albanian population would have local autonomy or, alternatively, take a subordinate position to central authority in Belgrade. In both cases, these central issues led to many related disputes, including access to public sector employment, control over educational institutions, and others. What phase is the conflict in?

When analysts attempt to discern root causes of the genocide in Rwanda, they often refer to the substantial fear and mistrust that the Belgians fostered between Hutu and Tutsi during the colonial periodand that the Hutu perpetuated during independencealong with the scarcity of resources, especially land, in one of the poorest nations in Africa. For more immediate causes, analysts note the refugee crisis that resulted from the massacres of Tutsi beginning in the late 1950s, the desire of the Tutsi refugees to return to Rwanda, Hutu fears of the return of the refugees, and the willingness of the Hutu establishment to exploit those fears to remain in power. In Kosovo, analysts point to the strong attachment that both Serbs and Albanians have for the land; the scarcity of resources and generally poor economic conditions in the region; the longrunning desire of the Albanians, who form the local majority in Kosovo, for independence; and the greater strength in economic and military resources of the Serbs, who form the majority in the region as a whole. As more immediate causes, analysts refer to the movements for independence and wars in Slovenia, Croatia, and Bosnia, which encouraged the Albanians in Kosovo to seek their own independence, while helping to inflame Serbian nationalism. As in the case of Rwanda, analysts note the willingness of politicians to exploit ethnic nationalism to gain and hold power. 5.3: Issues, Scope and Stage

What is its intensity? Who is suffering most? In this exercise, we are using the framework to study points in the conflicts just prior to the outbreak of major hostilities. Thus, in both cases the conflicts were in a state of crisis, with tensions running high. In Kosovo, Albanians suffered greatest damage to life and property; however, many Serbs lost similarly. The Federal Republic of Yugoslavia suffered continuing political damage and economic loss due to international sanctions and ostracism. In Rwanda, Tutsi civilians suffered on an unimaginable scale. 5.4: Power, Resources and Relationships Analysts study the relationships among the leaders of each group, as well as the resources available to each side. What is the state of relations among the leaders? What are the existing communication channels? In Rwanda, the Hutu moderates, who had developed excellent communication lines with the RPF during the Arusha negotiations, were killed when the genocide began. The UN and the diplomatic community that had provided critical channels of communication between the hard-line Hutu and the RPF, were unable to sustain this role once the genocide began. In Kosovo, all communication was through the media or third parties, above

all the Contact Group. There was no regular communication directly between the Milosevic government and Albanian leaders. The Albanians considered Serb leaders to be war criminals; the Serbs saw the Albanians as traitors to the state. What are the resources and capacity of each side? Rwanda is one of the poorest nations in Africa. Although Hutu leaders had all the resources of a government in power, the Rwandan Armed Forces were ill-trained and had little combat experience. By contrast, soldiers in the Tutsi-led Rwandan Patriotic Front had significant combat experience from their participation in the Ugandan war for independence. In the conflict in Kosovo, the Serb side had the majority of assets from the old Socialist Federal Republic of Yugoslavia, including a substantial police establishment and remnants of an army that was originally configured to resist the Soviets. Albanians in Kosovo had local weaponry plus additional weapons liberated from the collapse of the Republic of Albania. Both the Serbs and the Kosovo Albanians were in poor shape economically. Both inherited weak socialist economies. The Serb side had more resources to begin with, but was weakened from years of war and economic sanctions. 5.5: History of Peacemaking Efforts To learn from previous attempts at intervention, analysts pay particular attention to the history of peacemaking efforts. Did the parties ever co-exist peacefully? What changed? Before European colonization, Hutu and Tutsi co-existed in relative harmony. However, relations changed dramatically during the colonial period when Belgians sharpened distinctions between the two groups, favoring Tutsi at the expense of Hutu. The country eventually gained independence from Belgium, but the enmity of the colonial period remained and was nurtured by the Hutu leadership after independence. In Yugoslavia under Tito, peaceful coexistence rested on balance among the country's various ethnic groups, coupled with a degree of economic stability. Albanians in Kosovo even gained some measure of autonomy during this period. However, the death of Tito led to the eventual collapse of central authority in Yugoslavia. When Milosevic came to power in Serbia, Albanians lost the autonomy that they had gained. What were the previous attempts at a settlement? Why did they fail? Was there a pattern to the failures? Between the Hutu-led Government of Rwanda and the Tutsi-led Rwandan Patriotic Front, there were several attempts to

negotiate a power-sharing agreement, along with a return of Tutsi refugees. The most successful negotiations resulted in the Arusha Accords. However, in each case the Government stalled in implementing its responsibilities under the agreements, leading observers to suspect that the Government was not negotiating in good faith. As the post-Tito system collapsed in Yugoslavia, the Slovenes, Croats, and Bosnians declared their independence. In each case, negotiations failed, leading to war. At the same time, Milosevic held tightly to Kosovo, a symbol to Serb nationalists, while Albanians in Kosovo increasingly wanted the independence that others were achieving. Efforts to facilitate negotiations between the parties failed. 6: Case Study: Tajikistan Case Study Directions This case study will give you an opportunity to apply what you have learned about the analytical framework to a real-world conflict. The passage describes the conflict in Tajikistan in the early 1990s. As you read the information, pay particular attention to framework topics that you have learned: Actors Root Causes Issues, Scope and Stage History of Peacemaking Efforts The narrative does not provide information about Power, Resources and Relationships. Conflict in Tajikistan Tajikistan is the poorest of the Central Asian republics of the former Soviet Union. The country had been formed and held together only under Soviet rule. There was little sense of national identity. Following the dissolution of the Soviet Union and the independence of its constituent republics, a civil war broke out in Tajikistan in May 1992. The main Tajik actors were the northerners from the Khojand region (the major industrial and agricultural area) and southerners from the Kulob region. Ideology was not a factor; the conflict was a power struggle among different clan-based regional parties for access to the country's political and economic spoils. There were, however, democratic, Islamic and nationalist movements also opposed to the communist-style government allied to the Kulobis. There was also an Uzbek ethnic minority in the country. Outside forces were also involved: Pakistan, Iran

and Saudi Arabia provided support to the Islamic movement. Russia became militarily involved to protect the southern border of the Commonwealth of Independent States. Uzbekistan and other Central Asian states were concerned at the possibility that a fundamentalist Islamic movement might take power. Efforts to resolve the civil war began in 1993 as influential citizens from different regions and factions started an unofficial dialogue under the auspices of an American-Russian academic team. The UN launched an official mediation process in 1994 involving the major combatants, the government and the United Tajik Opposition. Meanwhile, Tajik non-governmental organizations working on citizenship education and civil society sought to work across the regional divides. A comprehensive peace agreement was reached in 1997. The OSCE has been acting as a guarantor of the agreement, and working on human dimension issues and national reconciliation. Analytical Framework Actors: Who are the primary actors?

interests, and best alternatives described by Shell, Ikle, Fisher and Ury. James E. Laue includes the relationship between parties in his definition, calling negotiation an exchange of information, ideas, and promises by two or more parties with differing interests, with the aims of, first, developing a mutually acceptable resolution of their differences that is stable over time and, second, improving their ongoing relationship.. Parties do not always pay close attention to long-term relationships as they negotiate, so this consideration is not always included in general definitions. However, as we shall see, relationships are usually important to the successful implementation of an agreement, and tend to be particularly important in negotiation as an alternative to violence. Xxx The key elements of negotiation: Approach, where we ll examine conflict and negotiation styles; People, where we ll discuss relationships and culture; Leverage, where we ll cover inducements, coercion and normative standards; and Process, where we ll discuss different phases in a negotiation. 2.1: Approach

Secondary actors? Establishing a Tone Root Causes : What were the parties' motivations? What were their underlying fears? Issues, Scope and Stage: What phase is the conflict in now? History of Peacemaking Efforts: Was there a time when the parties coexisted peacefully? What changed? What were previous attempts at settlement? The Key Elements of Negotiation Negotiation is A process of communication ... Aimed at achieving specific goals ... Where parties in conflict undertake to work together to shape an outcome ... That meets their interests better than their best alternatives. This definition uses uncomplicated language, like Shell s definition, and includes the concepts of communication, goals,

How a negotiator defines success will influence how he or she approaches the effort. On this subject, no comparison has generated more discussion and analysis than the distinction between competitive bargaining and collaborative problem solving. Competitive Bargaining Negotiation is most often viewed as a process of competitive bargaining, as when haggling over price. Terrence Hopmann helps explain this approach with the aid of the following diagram. Diagram: A Simple Model of Two-Party Bargaining In this diagram, Point A represents the best-case result for one party, and Point B the best-case result for the other party. In a negotiation to buy a car, Point A would be the low price desired by one party, and Point B the high price demanded by the other. As suggested by the arrow shapes, both parties pull in opposite directions. Points A1 and B1 are their best alternativesFisher and Ury s BATNA (best alternative to a negotiated agreement)or the points at which each would walk away from the negotiation. If the price is too high, Point A1, the buyer will walk away. If the price is too low, Point B1, the seller will walk away. In this model, negotiation is a kind of verbal tug of war. Each side pulls as hard as possible, trying to secure an outcome closest to its best-case result and furthest from its BATNA. This diagram also helps illustrate other key terms:

Bargaining space. The bargaining space is the area between the two BATNAs. Any agreement within this space should result in an acceptable deal for both parties. Reciprocity principle. As each party makes a move away from its opening position and towards the center, it will expect the other to reciprocate. Contrast principle. As each party moves toward the center, it will emphasize what it has given up, or contrast its new position with its old one. Splitting the difference. This model helps illustrate that some kind of equitable compromise is often possible, that two sides can agree on splitting the difference as a relatively fast and efficient way to get to an agreement that both can accept. Splitting the difference can be defined as agreeing on either the mathematical median between the parties interests. Zero-sum. In this model, there is an implicit assumption that one side s gains must come at the other s expense, providing fuller illustration of the zero-sum nature of this kind of bargaining. In Hopmann s words, The goal of a competitive bargainer motivated to seek the highest possible relative gains is to reach agreement just inside the opponent s point of minimum acceptability, where their preferences overlap, but where one party gains a lot and the other party gains relatively little.. Hard bargaining. Thus, to arrive at outcomes closest to their opening positions, parties will frequently engage in a number of hard-bargaining tactics. Some of these may seem familiar and list, including Extreme claims followed by small, slow concessions Commitment tactics: committing to a course of action that ties one s hands, thus forcing the other side to accommodate Take-it-or-leave-it offers: stating that one s offer is nonnegotiable that the negotiation will end if it s not accepted Personal insults and feather ruffling: using personal attacks to play on the other side s insecurities Bluffing, puffing, and lying: trying to influence the other side s perception of what would be acceptable by exaggerating or misrepresenting the facts Threats Hopmann s model illustrates a two-party negotiation, but the same principles can apply to multiparty negotiations as well. Overall, the competitive bargaining model provides useful insights into certain types of negotiation, especially negotiation over the price of a single item. But other approaches are possible as well, and as this model is applied in various cases, it is frequently criticized on three main

points. First, its simple, linear nature does not encourage negotiators to study the conflict in depth in order to find better trade-offs than simply splitting the difference. Second, because all possible gains for one party are presumed to come at the expense of the other, it often encourages the use of hardbargaining tactics, which can be detrimental to the long-term relationship between the two partiesa particularly important consideration when negotiation is attempted to resolve violent or potentially violent disputes. Finally, in these cases in particular, simple competitive bargaining may not lead to sustainable agreements, because both sides need to feel motivated to implement such important agreement in good faith, which typically will not happen if one side feels it was tricked or intimidated into submitting to a bad deal. Collaborative Problem Solving The problem-solving approach is very different. This diagram below is adapted from Susan Collin Marks, and illustrates the collaborative nature of this approach. Diagram: Collaborative Problem Solving Marks describes this approach as a way to turn and face the problem as a joint problem,. an approach that she credits for much of the success in the negotiations to end apartheid in South Africa. While it s always essential to consider such ideas as BATNA, bargaining space, and the reciprocity principle, other concepts become important as well: Reframing. Getting to better solutions often requires the parties to reconsider or reframe the issues. In intractable conflict, the issues as originally defined have led the parties to deadlock; for a variety of reasons, all potentially valid, neither side is willing or able to make the kind of compromises necessary to find common ground. Reframing means looking at the problem from new perspectives in order to find ways to break the deadlock. The difficulty of reframing, especially in intractable violent conflicts, is a principal reason for the use of third parties. Information exchange. This kind of reframing can be very difficult. To have a realistic chance at success, the problemsolving approach requires both parties to share information more freely than they would in competitive bargaining. The parties will perceive risks in this kind of openness; in fact, there may be risks. However, successful reframing requires as much new information as possible. Just as importantperhaps more importantboth sides must listen carefully to the concerns of the other side. Joint gains. In the best cases, reframing leads the parties to find value that was not previously apparent. In Hopmann s words, Problem solvers emphasize that negotiators should not be

As a hypothetical example, Hopmann describes an estate to be distributed among heirs. If the estate s value is viewed in purely monetary terms, then the best that might be hoped for is a split, with each heir accepting an equitable fraction of the total dollar amount. However, by viewing the estate in other ways, the heirs might end up with a division that each finds personally much more rewarding: If the heirs value money, property, heirlooms, personal mementos, and the like differently, then the very differences in preferences among the items may suggest a way to enlarge the value of the estate by seeing that each heir receives what he or she values relatively most highly.. Enlightened self-interest. A collaborative, problem-solving approach is not undertaken merely out of generosity, but also for reasons of self-interestor enlightened self-interest.a term that describes the concept of helping others in order to help oneself. In Eileen Babbitt s words, Effective negotiation usually requires ... [an] understanding of the other side, not for altruistic purposes but out of the necessity to respond to the other party s concerns in order to get one s own needs met.. Perspectives on the Two Approaches There are other approaches to negotiation, but no distinction has generated as much discussion among academics and practitioners as bargaining vs. problem-solving. Various authors have examined this fundamental insight in different ways. Positions, Interests, and Needs Fisher and Ury put their emphasis on the differences between positions and interests. Their work has been highly influential in the study of negotiation. Positions. When negotiators come to the table, they usually arrive with a full set of positions. Positions are what negotiators say they want; they are ambitions. They are usually presented as comprehensive solutions to the problem in question and tend to be expressed as concrete statements or narrow demands, often in specific dollar amounts. They can reflect posturing on the part of the negotiators, and they can sometimes be presented in extreme terms. In Hopmann s competitive-bargaining diagram, Points A and B, the best-case results for each side, are positions. One problem is that positional bargaining can contribute to the kind of win/lose, competitive deadlocks described by Hopmann and others. According to Chester Crocker, Hampson and Pamela Aall, positions often acquire totemic status and may, deliberately or otherwise, constrain leadership flexibility, thereby contributing potentially to intractability..

Needs. Interests themselves can be further analyzed and shown to represent even more fundamental component needs, a concept frequently illustrated with the following diagram: By this model, interests are conceived as means to an end. For example, one group might have an interest in a particular dam in order to satisfy their basic human need for water, or the same group might have an interest in representative government to satisfy their basic human need for self-determination. In Kelman s words, International or ethnic conflict must be conceived as a process in which collective human needs and fears are acted out in powerful ways. Such conflict is typically driven by nonfulfillment or threats to the fulfillment of basic needs.. Tangible and intangible needs. Where positions are stated explicitly, interests are often very difficult to uncover and name, for while interests include easily identifiable physical needs, such as security, food, shelter, and economic well-being, they also include intangible needs, such as autonomy, self-determination, justice, equal treatment, and recognition, along with different forms of belonging, like ethnic, religious, national or regional identity. In our conflict analysis course Root causes are often difficult to determine because they are closely associated with these deep, often unexpressed interests and needs. Comparing Approaches In comparing approaches, we have already said that collaborative problem solving is more likely to get at fundamental interests and needs, and more likely to lead to joint gains, than competitive bargaining. However, we have also noted that problem solving almost always involves more time and effort, and may also involve more risk. However, it would be too simplistic to say that competitive bargaining is a cautious. approach and collaborative problem solving a bold. one, and it would be erroneous to call either one a good. or bad. approach. Everything depends on the situation. Competitive Bargaining For example, in some cases it can be useful and productive for a negotiator to take an inflexible, competitive stance. In times of crisis or urgency

content just to divide up some fixed pie among themselves. ... Instead, they ought to consider what is at stake for each of them in the dispute and then search for ways to fulfill their needs and interests to the greatest extent possible..

Interests. Interests are the fundamental needs that inform positions. In the words of Fisher and Ury, The basic problem in a negotiation lies not in conflicting positions, but in the conflict between each side s needs, desires, concerns, and fears. ... Such desires and concerns are interests.. Interests are the silent movers behind the hubbub of positions. Your position is something you have decided upon. Your interests are what caused you to so decide.. Crocker, Hampson, and Aall add, The interests of the parties may, in fact, be quite different from their stated positions, and disentangling the two is a central challenge..

One-time negotiation When defending vital interests and essential principles Collaborative Problem Solving Collaborative problem solving also has its strengths and limitations. Unrealistic expectations Time-intensity When bargaining has already been tried and failed When relationships have deteriorated When conflicts center on interests that are difficult to quantify When implementation may be particularly problematic When the relationship will likely be long term 2.2: Relationships The various types of relationships in a negotiation: Counterparts Counterparts sit across from one another at the negotiating table and represent opposing viewpoints in a conflict. The relationship may be simple and adversarial, but it is typically more complex than that. Bertram Spector and William Zartman observe that good personal rapport usually makes it easier for counterparts to discover, comprehend and find ways to bridge gaps between conflicting interests.. Constituents Constituents are those whom negotiators represent, and in many cases those to whom they report. Like counterpart relationships, constituent relationships tend to be complex. As negotiators study the moves of their counterparts, Druckman notes, they simultaneously monitor their own side for evidence of changes in positions.. Stakeholders A stakeholder is anyone who has something at stake in a negotiation. For example, constituents for all the parties are stakeholders. It s wise, if not essential, to have the interests of all stakeholders represented; any left out may have little incentive to assist in implementation, and may even challenge the agreement on the grounds that they had no role in it. Ratifiers Ratifiers, are special constituents who have final approval over whatever deal finally emerges. Spoilers

The term spoiler is used to describe anyone who seeks to block or sabotage an agreement. Spoilers may be at the head of political or other factions that draw support by playing on fears. They may run criminal enterprises such as smuggling scarce goods or illegally trading arms. They may be extremists with an ideological animus toward the other side. Spoilers can be any who calculate that their wealth, power, standing, or identity will be augmented by continuing conflict and threatened if an agreement is reached. Spoilers often work behind the scenes; as a consequence, when initially analyzing a conflict s actors, effective negotiators will take special care to ask who might have a motive to play the role of spoiler, and will throughout the negotiation consider each actor s choices from this perspective, particularly actors who repeatedly seek to block progress. Cultural Differences As we ve seen, even in a simple, two-sided dispute, negotiators typically find themselves with a range of difficult relationships to maintain; managing these relationships grows even more challenging in a complex, multiparty context. When considering relationships in a negotiation, another important complicating factor is the influence of culture. Culture can be defined broadly to include beliefs, patterns of thought, and patterns of expression transmitted in a society from one generation to the next, but several points are particularly relevant when discussing culture as it relates to conflict and negotiation. Conceptual Dissonance Communication styles are not the only source of misunderstanding between cultures. Some problems have their origins in language itself. Most people with foreign language experience realize that translating complex concepts cannot usually be done on a word-by-word basis, particularly not between languages that are fundamentally dissimilar, such as English and Chinese. The lens of language The problem is more than just one of translation. Different language systems carve up meaning in their own ways, bundling and prioritizing concepts according to different historical, philosophical, and even accidental precedents. For this reason, language is much more than a medium of communication. It is a fundamental lens through which people perceive the world. Women s Underrepresentation It is important to note that women tend to be substantially underrepresented in local and national governing structures around the world, as well as in formal negotiations for peace. A report by the United Nations Development Program indicates

that when women do get opportunities to participate in a negotiation, they are often limited to minor roles. The report notes that women often organize themselves at the grassroots level in order to promote activities for peace, but they do not get access to the negotiation table in the formal peace process. To be effective in preventing a resurgence of conflict, the negotiation of peace agreements must address the needs of the entire population. The inclusion of women at the negotiating table is particularly important in order to take advantage of the space that is created in conflict and post-conflict settings to expand traditional gender roles and to mainstream issues that typically affect women disproportionately, such as gender-based violence or single-headed households. 2.3: Leverage Relative Strength There are several different types of leverage. Carrots and Sticks Carrots and sticks. is an expression that refers to various types of persuasion that a party can use in a negotiation to try to change the cost/benefit calculation of its counterparts so as to produce agreement. Carrots. Carrots are rewards, or positive inducements. These inducements might include anything that a counterpart values. Kelman provides a list of typical carrots, including economic benefits, sharing essential resources, international approval, integration in regional or global institutions, or a general reduction in the level of tensions.. Sticks. Sticks are punishments, essentially anything that might harm the counterpart s interests. In international negotiations, sticks tend to take three primary forms: political-diplomatic sanctions, economic sanctions, and military force, although coercion can take other forms as well. Along with deliberate, punitive action, the coercing party might threaten to withhold something that the target of coercion highly values. Solomon explains, It is the ability to determine which carrots and sticks will carry most weight in a given situation, to combine them in just the right proportions, and to deploy them in just the right sequence that is the hallmark of an effective negotiator. Walk-Away Leverage Another important way to view leverage is to consider who has the most attractive BATNA. In this case, the BATNA is sometimes called walk-away leverage.. To determine leverage, Shell uses a simple test, asking which party has the most to lose from no deal. The party with the most to lose has the least leverage; the party with the least to lose has the most leverage; and both parties have roughly equal leverage when they both stand to lose equivalent amounts should the deal fall through..

Bargaining with Less Leverage Experienced negotiators have various ways of improving their chances of success, even in this unenviable situation. Understanding leverage. Seasoned negotiators understand that they always have some leverage, even if they have less than their counterpart. There wouldn t be a negotiation if one side had no leverage at all: the stronger side would simply impose its will. As a negotiator, remember that your counterpart came to the table because they want something. This is your leverage. Ignoring intimidation tactics. Negotiators sometimes use specific hard-bargaining tactics that are designed to intimidate you. They might make you wait and then rush you along, make offers and then retract them, claim more authority than is warranted, belittle your proposals, insult you, or make threats. When your counterpart has more leverage, these intimidation tactics can be hard to ignore. But you must ignore themor better, to the extent possible, try to analyze them for what they tell you about the strengths and weaknesses of your counterpart s position. With each of these tactics, the hard-bargainer is trying to make you forget that he or she wants something from you, which, again, is the source of your own leverage. Don t be intimidated. Roy Lewicki, David Saunders and John Minton recommend that you explore the other party s perspective with questions designed to reveal his or her needs and interests,. noting that it is very much to your advantage to understand what the other party really wants.. They also recommend a focus on the other side s strategy and tactics, pointing out that although it is unlikely the other party will reveal his or her strategy outrightparticularly if he or she is intending to use distributive tacticsyou can infer this information.. Improving leverage, or BATNAs. There are ways that negotiators attempt to improve their leverage. In some cases, they try to change facts on the ground; in others, they try to form coalitions with parties who share their interests. Experienced negotiators know that their BATNA, or walk-away leverage, is the best measure of their negotiating strength, even better than whatever inducements or coercion they might be able to bring to bear. Normative Leverage Normative leverage is important because it has the potential to strengthen negotiators who are in a weaker position: those who have poor BATNAs, little to offer as inducement, or potential to become targets of coercion. Negotiators apply normative leverage when they base their persuasive strategy on generally accepted norms or standards: Scientific Norms Scientific evidence. Scientific evidence has wide acceptance as a standard in the international community. To be accepted,

scientific results must be repeatable; therefore, all sides may independently verify claims based on science. Physical human needs. One major achievement of science has been to quantify basic human needs with great accuracy and precision. Principle of efficacy. By this simple standard, proposals are judged on their ability to provide solutions that will work. Principle of efficiency. By this related standard, proposals are judged on their ability to provide solutions that use the fewest resources. Social Norms Equal treatment. That every person deserves equal treatment is a principle with widespread acceptance in the international community. It can be interpreted in different ways, and often is; nevertheless, it informs several foundational standards of social interaction and good governance. Rule of law. Following from equal treatment, rule of law affirms that every person in a society should be held accountable to the same set of laws. Democracy. Following from equal treatment and rule of law, democracy affirms that every person deserves a voice in the creation of the laws that everyone in the society must live by. Self-Determination. Related to democracy, self-determination affirms the right of whole peoples to govern themselves. Sovereignty and territorial integrity. Following from selfdetermination, territorial integrity affirms the right of peoples to live within consistent, sovereign borders. Market value. Market value applies when private property is collectively defined and protected, and values are determined in a market by supply and demand. Customary law or common practice. Like codified law, customary law or common practice also appeals to basic notions of equal treatment. To be useful in negotiation, these standards don t have to be universally accepted, but they must be widely accepted. 2.4: Process Negotiation is often complex and time-consuming; breaking the process down into component parts helps to clarify the whole. Shell offers a good general purpose model. Negotiators, in his conception, move through a series of steps: 1) Preparation, 2) Exchanging Information, 3) Opening and Concession Making, and 4) Closing and Commitment.

The arrows in the diagram that connect Exchanging Information and Opening and Concession Making show that negotiation is a recursive process; these steps are often repeated several times before negotiators get to Closing and Commitment The importance of process. While process is important to negotiation in any context, negotiations to end violence and bring peace tend to be highly complex undertakings with substantial potential for deadlock, raw emotional outburst, and adverse unintended consequences. This difficult activity has much greater chance of success if it is conducted with some kind of structured process in mind. As Crocker, Hampson, and Aall state, Much depends on whether or not there is an available mechanism for negotiating, reaching, and sealing a deal.. Druckman adds that the process can be used to provide a recognized pattern of expectations and behavior. and also to chart progress. Finally, decisions over process can significantly influence substantive outcomes. Keys to Successful Negotiation 5.1. Prepare Extensively In what specific ways, then, should you prepare? There are a number of points to consider in advance of negotiations. A good place to begin is with your analysis of the conflict. In our Certificate Course in Conflict Analysis, we presented an analytical framework that should be helpful. Everything in this framework has potential relevance to a negotiator. Moreover, we can build on the framework in several ways: Actors => Stakeholders Issues => Positions Root Causes => Interests Resources => Leverage Phase => Ripeness For key categories in the framework, we can identify more specific considerations that are especially useful for preparation in negotiation. Actors => Stakeholders As a negotiator, you should focus especially on those actors who are stakeholders in the conflictconstituents, counterparts, decision makers, and even potential spoilers. Know your constituents and counterparts. To be truly effective, you ll need detailed knowledge of those whom you represent, their perceptions of your common interests, their aspirations, needs, fears, risk tolerance, etc. You should also know as much as possible about your counterpart, along with those whom your counterpart represents.

Also, for each side, yours as well as your counterpart s, it s important to know as much as possible about the decision makers. As Shell notes, The decision makers needs, including their status, self-esteem, and self-fulfillment interests, will drive the negotiation.. Rubin agrees, stating, The personality of a leader is of great importance, as is his or her motivation to make decisions in favor of conflict settlement or negotiation.. Study broad cultural traits and individual styles. It s also important to consider different cultural influences and individual styles you might see in course of the negotiation, and how you might prepare for them. Issues => Positions In addition to the conflict s actors, you should conduct a thorough study of the issues separating the various sides. Moreover, as a negotiator, you should know each actor s position on each issue. Know all sides stated positions. You should try to learn as much as you can about your counterpart s view of the issues. You can begin by carefully studying their positions as articulated in their public statements and specific proposals. You should also be well versed in everything that your own side is proposing. Your own negotiating team, stakeholders, and decision makers should be working in coordinated fashion. Root Causes => Interests Thorough study of issues and stated positions is not sufficient, of course. It s also necessary to consider root causes of the conflict. Your study of root causes should help you in coming to understand the fundamental interests of your counterpart. Consider all sides fundamental interests. Your evolving understanding of the conflict s root causes should help you in identifying your counterpart s fundamental interests and needs the essential fears, hopes, and aspirations that inform their stated positions. Getting at root causes is not easy, and fundamental interests, particularly those related to identity, can be very difficult to demarcate. It s helpful to study the question in advance, but on this point in particular you should expect to deepen and refine your understanding in face-to-face sessions with your counterpart. As you sift through new data, you will be in a continual process of evaluating and reformulating hypotheses about what is motivating your counterpart. Understand your own interests. Also, you should never underestimate the importance or the difficulty of consciously identifying your own interests and needs, which are distinct from whatever you might put forward as your own opening set of

Consider opportunities for joint gain. Study of interests on all sides should help you to identify potential common ground, and should help you in the difficult search for alternative solutions innovative proposals designed to create value in ways discussed by Hopmann and others, or compromise proposals designed to split differences in mutually-acceptable ways. The effort to find alternatives will require give-and-take with counterparts and will thus come later in the process; still, you will benefit by thinking about it during the preparation phase. Resources =>Leverage Estimate leverage. Consider potential sources of leverage for yourself and for your counterpart, including potential carrots and sticks, possible norms and standards that may apply, and possibilities for building coalitions. Know your BATNA and estimate your counterpart s. You should determine your own BATNA in advance of negotiations. In the words of Fisher and Ury, If you have not thought carefully about what you will do if you fail to reach an agreement, you are negotiating with your eyes closed.. You will not be able to determine your counterpart s BATNA with the same accuracy and specificity, but you should do your best to estimate them, again planning to use the negotiating sessions to reevaluate and refine your understanding as you go along. Know your adversaries,. Howard Raiffa urges. Consider what will happen to them (or he or she as the case may be) if no deal is struck. Speculate about their alternatives.. Phase => Ripeness In our conflict analysis course and earlier in this course, we presented the Curve of Conflict, a conceptual tool that shows how use of force in violent conflict tends to rise and fall over time, how to recognize a conflict s different phases, and how various types of intervention correspond to these phases. In preparing for negotiation, it can be helpful to determine the phase of the conflict in order to help estimate its ripeness. Address issues prior to the outbreak of hostilities. For example, it s generally easier for counterparts to address issues prior to the outbreak of hostilities, before emotions rise quickly and uncontrollably. However, at this point the parties might not fully appreciate the terrible loss that violence will bring, and thus might not be disposed to make concessions. Consider the costs of stalemate. With the heated passions that accompany higher levels of violence, opposing parties might be less likely to meet. But in long-running violent conflict, even

Focus on ratifiers and potential spoilers. When negotiating a peace agreement, it s vital to consider the interests of all warring parties, especially any who might play the role of spoiler.

positions. There is probably nothing more important than having a clear and precise understanding of your own side s fundamental interests and needs in a negotiationespecially when those interests may not be identical for all those whom you are representing.

Of all these, the other side s BATNA might be most determinative. As Fisher and Ury state, The more you can learn of their alternatives, the better prepared you are for negotiation. Knowing their alternatives, you can realistically estimate what you can expect from the negotiation.. And you can better determine what actions outside the negotiation itself can improve your bargaining leverage. Determine Your Approach As you explore alternative approaches, it s crucial to remember that your purpose in negotiating is to protect and advance your own interests, even if you choose to explore collaborative solutions through a problem-solving approach. Thus, even when approaching negotiation from a collaborative, problem-solving perspective, expect that your counterpart will be looking out for their own interests, and that you will have to look out for yours. This said, we recommend entering negotiation in a collaborative spirit when circumstances permit. 5.2: Cultivate Relationships Know Whom You Are Facing Negotiations lead to better outcomes when the parties develop good working relationships. There are several steps that you can take to cultivate good working relations. Build Trust . Listen Carefully . Present Your Case Clearly. Harness Emotions . Use Leverage Wisely Build Trust Do no harm. As you begin to engage your counterpart, you ll find it helpful to avoid statements like the following: Let s cut the niceties and get down to business.. This kind of approach might contribute something useful in some circumstances, but it does not signal an appreciation of the difficulty of intractable violent conflict, the importance of building the kinds of positive relationships needed to transform it, or the need for the other side to be motivated to implement an agreement reached in good faith. Remind negotiators why you are there. By your first meeting, all sides have invested some time, energy, and prestige in the promise of a negotiated settlement. It can be helpful to acknowledge this fact explicitly. Depersonalize problems. Too much emphasis on who is right and wrong tends to get in the way of clear and dispassionate thinking.. Experts suggest viewing problems from different perspectives, an approach that allows both sides to approach the issue as a problem out there rather than as a problem that belongs to one side only..

Even in cases where one side seems to be stronger, the costs of continuing the conflict will typically be high for the stronger as well as weaker sides. Negotiators may arrive at an agreement that reduces costs and casualties all around, with the weaker side having to concede more points, but still achieving a better outcome than continued warfare, or a decisive defeat. In their study of several cases, Stein and Lewis note that negotiations have been most likely to succeed when the status quo seemed more painful or dangerous than a potential negotiated compromise, at least for some of the parties.. Stein and Lewis conclude that timing in launching negotiations is often decisive.. Aim High... The preparations that we have discussed will help you set your goals and determine your strategies. In terms of goals, you should almost always aim high. Low expectations tend to result in small accomplishments. ...But Be Realistic How high? Extreme demands tend to be counterproductive. If not rigorously defensible, big demands may simply antagonize your counterpart, who in any case will not accede to them. Pruitt states, Bargainers who demand little will usually reach agreement but achieve low profits. Those who demand a lot will fail to reach agreement and hence also do poorly. With moderate demands, bargainers will often reach agreement at a good level of profit.. So how do you settle on aims that are both high and realistic? Several of the considerations we have covered will help you make this determination: The other side s interests: What do they really need? Applicable norms and standards: What really is fair? The weight of possible coalitions: Who is on your side? The other side s BATNA: What are their alternatives? Who needs an agreement more?

intractable foes often begin to feel a war-weariness, when the cost and consequences of fighting can make them more willing to undertake the difficult work of forging agreement. The catalyst for negotiations often comes in the form of Zartman s mutually hurting stalemate, leading to a ripe moment. He elaborates on this idea: A belligerent reaches a plateau when it sees the conflict as unending, uncomfortable terrain stretching far into the horizon, with no possibility of respite. Correspondingly, the precipice represents the realization that matters will quickly get worse, if not catastrophic, if the options of negotiation and reconciliation are not explored.

Whose side is time on?

Create rapport. Though your counterpart represents different sets of interests, it doesn t hurt to engender feelings of affinity and goodwill. When appropriate, share some personal information. Establish balanced procedures. Few procedural concerns are as important as ensuring equal treatment, a principle that should apply even before formal negotiations begin. All sides must see the negotiation as an opportunity to get a fair hearing. There should be a back-and-forth exchange of views, however frank, with ample flexibility for all sides to make their best case. Reach out to ratifiers. Of all groups with a stake in the negotiation, none are more important than the ratifiers who will have to ratify the agreement, formally or otherwise, and those who must implement its terms. You should maintain access to your own ratifiers and should begin cultivating a good working relationship with them from the outset. Your access to the other side s ratifiers may be limited, particularly in the early going; if so, you should at least attempt to learn as much about them as you can. Listen Carefully One of the most common mistakes that negotiators make is to put too much emphasis on presenting a forceful case and not enough on listening. Active listening. The term active listening. has been coined to describe engaged, careful listening. Active listening shows that you take your counterpart seriously and in this way helps you build a healthy working relationship. Moreover, it is in your selfinterest to learn as much as possible about your counterpart, their constituencies, decision makers, interests, BATNA, etc. Use listening techniques. To get as much as possible from the exchange of information, experienced negotiators keep a few simple points in mind: Show genuine interest in the other side s problems. In Sunshine s words, Use active listening to demonstrate your genuine interest in what your counterpart has to say. < You may be surprised to observe that your receptivity can encourage your counterpart to divulge additional information.. Ask questions to understand the other side s perspectives. Herb Cohen recommends asking questions even when you think you know the answers. If you get the answer you expect, you have confirmed your expectation and taken the opportunity to test the credibility of the other side.. If you get a different answer, then you have an important disconnect to explore and reconcile Acknowledge opposing views, even when you don t agree. In your discussions with counterparts, it s helpful to restate periodically what you hear in order to verify your understanding. It s also important to acknowledge the validity of their experiences and feelings, keeping in mind that this
       

acknowledgement does not constitute agreement on specific positions. Kelman states: Acknowledgements often have a powerful psychological impact in opening the way to negotiation and accommodation. ... Acknowledgement in this context refers to a party s public acceptance or confirmation of the other party s view of its status, its experience, its reality. Thus, one party may acknowledge the other s humanity, nationhood, national rights, suffering, grievances, interpretation of its history, authentic links to disputed lands, or commitment to peace. Such acknowledgments do not constitute acceptance of the other s position or accession to its claims, but at least they serve to recognize that there is some legitimacy to these positions and claims and some basis for them in the other s experience. Acknowledgments have such a potentially powerful impact because the history of a conflict is often marked by the systematic denial of the other s experience, authenticity, legitimacy, and even membership in the human family. These denials create profound fear and insecurity, because they undermine the very foundations of the other s claim to nationhood and challenge the other s right to national existence. Check your understandings. Churchman recommends that you summarize what your counterpart says and make sure they accept your interpretation before responding.. He adds, It is difficult for opponents to remain angry or assert unfair treatment in the face of efforts to understand their concerns, needs, or positions.. This is a good frame of mind to take into a negotiation, although it s also necessary to keep in mind that some counterparts can be difficult to deal with in spite of your genuine efforts to show understanding. Present Your Case Clearly Provide a transition to your case. Indeed, what you hear can provide the basis for an effective, substantive transition to your case. Even if you cannot build on any of the other side s specific proposals, careful listening should help you communicate in a language that they will find clear and compelling, particularly in light of whatever shared interests and common standards you have discovered. Resist the temptation to rant. Although you may feel bitter and aggrieved, and may also have constituents who feel this way, Kelman cautions against making the kind of rant that tends to confirm old images and to keep the conflict alive. Clearly, it does not contribute to the search for ways in which each party can help the other make valuable and visible gains.. Generally, a concise, confident, and respectful presentation of your case will serve best in the long run.
          

Ensure that your message is heard. Ask for checks of understanding. Your counterpart may not be listening in the attentive way that you have been. Churchman recommends that you convince opponents to restate your position to your satisfaction before responding.. Harness Emotions It s important to anticipate ways that a relationship can deteriorate, and then to take steps to prevent these potential problems. People often react emotionally when discussing significant, long-standing grievances. It may not be possible or even desirable to stifle these emotions, but it is often possible to harness and channel them in productive ways. Avoid escalating wars of words. In a physical conflict, one act of violence can lead to another and then another; similarly, in a negotiation, one emotional outburst can lead to several, setting off a cycle of verbal abuse. According to Roger Fisher and Scott Brown, Too much emotion can cloud judgment. We rarely think clearly when our emotions are running high.. Try to stay positive. Gerben van Kleef and Carsten De Dreu have reviewed several studies showing that negotiators experiencing positive affect tend to be more cooperative and conciliatory, whereas negotiators who are in a negative affective state tend to be more competitive and reluctant to make concessions.. On the other hand, it is not always possible or advisable to stay positive, for example, when the other side is ranting or being unreasonable. Crocker, Hampson, and Aall recognize this and in some cases argue for hunkering down until the weather improves. Use Leverage Wisely Clumsy use of leverage can significantly damage relations with your counterpart and undo hard-earned gains that you have made. For example, coercive leverage can be an effective tool in changing people s cost/benefit calculations, but it can also backfire. In South Africa, Mandela believed that de Klerk was deliberately not doing enough to curb violence, as a means of applying leverage in their negotiations. When the Goldstone Commission turned up evidence of NP involvement in encouraging and financing black-on-black violence, the relationship between the men underwent severe strain; moreover, de Klerk ultimately ended up losing ground in the negotiation. Use warnings rather than threats. If negative inducements must be used, look for ways to deliver them as warnings rather than threats. Offer positive inducements that meet or protect underlying interests. Kelman says positive inducements can be particularly effective if they meet the other s interests or respond to the
  

other s security concerns that are the heart of the conflict, and if they are part of a concerted strategy that invites reciprocation.. 5.3: Focus on Interests and Needs Avoid Distractions It helps to keep the process focused on interests and needs your own of course, but your counterpart s as well. As Hampson points out, If their interests are not represented at the bargaining table, they will have a much stronger incentive to defect from the peace process and resort to violence to achieve their aims.. This brings us to the part of the process that Saunders calls Generating the Will for a Joint Solution.. As you begin to explore difficult terrain with your counterpart, the best way to generate this will is to avoid distraction and focus on fundamental interests and needs. . Maintain Caution, But... . Consider Making the First Cooperative Move . Address Different Kinds of Interests . Establish Reciprocity . Encourage Collaboration Risks of the Problem-Solving Approach But like so much else in the negotiating process, establishing this focus is not as easy as it sounds. Beginning with an interestbased, problem-solving approach is desirable for a variety of reasons. However, as we discuss putting this approach into practice, we must revisit an important concern raised earlier: that by showing openness and flexibility, a negotiator will appear weak and overly accommodating to a hard-bargaining counterpart, or even worse, will offer concessions without getting anything to show for them in return. Maintain Caution... In light of these risks, there are very real reasons to maintain caution. Be strategic about what you reveal. For example, you should not expect that your counterpart will reveal everything that goes into his or her calculations, and similarly you should think strategically about whatever information you reveal, along with the timing of your revelations. For example, explicitly revealing your BATNA, or revealing it at the wrong time, could very well be counterproductive. Don t be intimidated. As we discussed earlier, a number of hardbargaining tactics are deliberately designed to unnerve you: making you wait and then rushing you, making offers and then retracting them, insulting you and possibly threatening you. In
 

this case, showing flexibility is likely to be counterproductive. The key is to recognize this game and not be intimidated by it. But Consider Making the First Cooperative Move On the other hand, if you do not sense particularly hostile intent in your counterpart, you might consider making the first cooperative move, including sharing thoughts on basic interests and other kinds of information required to initiate a problemsolving approach. This is not always the best approach, but the risk may not be as great as it appears. In extensive research, Armstrong has found no strong evidence to suggest that overall taking a hard line was superior to less confrontational strategies in terms of results.. Address Different Kinds of Interests Shared interests. Druckman recommends that negotiators look for a set of general issues and principles on which they agree.. Compatible and conflicting interests. Typically, negotiations involve a range of interests that are shared, compatible, and conflicting; and only by summoning the will to go beyond opening positions are negotiators likely to earn the insights necessary to find joint gains and forge sustainable compromises. Tangible, intangible, and procedural interests. As we ve also discussed, interests may be tangible and related to physical human needs, such as: security, food, shelter, and economic well-being. Interests may also include equally important intangible needs, such as: autonomy, self-determination, equal treatment, recognition, and justice, along with different forms of belonging, like ethnic, religious, national, or regional identity. In our case study on the NPT negotiations, Soviet attitudes toward their U.N. veto power provide a good illustration of how procedural interests can have bearing on substantive interests. Good negotiators will attempt to bring all these various types of interests to the surface. Ask why? Part of active listening is asking questions, and the most important question to ask is why.. Depending in part on culture, persistent interrogation may be perceived as hostile and aggressive, but asked in appropriate ways, the following questions can lead to more productive discussions, first by demonstrating openness on the part of the questioner, and second by uncovering important information. What is your view of the situation? Why do you view the situation that way? What is important to you? Why is that important to you?


Why not? True progress requires understanding what really motivates the parties, what they fear and perceive themselves to be vulnerable to, and, above all, what could move them out of the stalemate. Establish Reciprocity In all cases, the amount and kind of information you reveal and the flexibility you demonstrate should depend on the level of reciprocal openness and flexibility you experience from your counterpart. Try to view the conflict through your counterpart s eyes. There is much overlap between cultivating relationships and focusing on interests. One area is in learning to view the conflict from your counterpart s perspective. Protect and advance your own side s interests. At the same time, you must not allow counterparts to take advantage of your openness and goodwill. Hopmann makes the following point: Most research suggests that unconditional cooperation in the face of exploitative behavior produces asymmetrical agreements, almost always to the detriment of the cooperative party. By contrast, some degree of firmness is most likely to keep distributive bargainers from pushing their advantage too far. ... The firm response can guarantee the party an agreement that is at least marginally superior to a minimally accepted agreement. Remain firm and fair. Sam Blank notes that it is possible to be hard-nosed and tough, and still establish a good relationship with high levels of credibility. Encourage Collaboration Beyond simply protecting yourself, you can try to convince obstinate counterparts to take a more collaborative approach. In dealing with hard-bargaining counterparts, Mnookin suggests that you name their game and negotiate explicitly to approach the negotiations in a more productive way.. Frame problem solving as self-interest. As noted earlier, an interest-based, problem-solving approach is not undertaken out of generosity, but enlightened self-interest. There is no need to hide or apologize for this motive; in fact, naming it explicitly may help. Acknowledging your focus on your own interests should enhance your credibility, and describing the approach in these terms may recommend it as a way for your counterpart to advance their own interests. Use Track II and Track III efforts. Track-two negotiations are usually conducted by politically significant elites who nonetheless are not official agents of their government. As private citizens who are not able to commit their states to agreements, they can think about alternative ways of reframing the problems under negotiation and explore new options for solutions that may not otherwise be permissible.
  

Work with a third party. One effective way to help negotiators move to an interest-based, problem-solving approach is to bring on a mediator or other third party for assistance. Continue to build relationships over time. Productive, collaborative relationships develop over time. In Kelman s words, As parties develop a relationship based on responsiveness and reciprocity, they become better able to approach their conflict as a shared dilemma that requires joint efforts at analysis and problem solving. 5.4: Solve Problems Find Ways to Bridge Differences At this point, negotiators typically organize their efforts around four key practical steps that help to make this phase successful: . Separate Problems . Establish Criteria . Generate Options . Forge Solutions Separate Problems There are a number of ways to break down a complex problem: Separate substance from process. Before tackling substantive issues, all sides should agree on a process for their particular negotiation: who will be seated at the table, where and when the sides will meet, what will be on the agenda, etc. Some matters of process can be every bit as difficult as matters of substance, particularly when questions of process appear likely to have impact on substantive divides. Thus, each side typically studies process carefully to see how various arrangements might influence substantive outcomes. At the same time, because the anticipated effects are often secondary and indirect, it can be easier to come to agreement on matters of process than on substance. Jointly solving relatively manageable problems can get the negotiations off to a good start and help build momentum. Separate difficult issues. It can also be helpful to break down large, ill-defined issues into smaller, more specific ones. Gregory Tillet maintains that a dozen precisely specified conflicts are much more amenable to effective resolution than one vaguely defined conflict.. Such separation also helps identify areas of greater and lesser interest to the various parties, clarifying possible trade-offs. Separate and regroup individuals. As much as possible, those who have a large stake in a particular issue should be included in the particular forum where decisions on that issue are made; this helps ensure buy-in and reduces the chances of any parties attempting to sabotage the eventual agreement. It may be


possible to consult with those who have minor stakes in the issue in a secondary forum. Establish Criteria Separate issues from standards. Even more than process, norms and standards have the potential to influence substantive outcomes. For this reason, it s rarely easy for parties to agree which ones apply. Still, due to the general nature and widespread acceptance of norms, parties typically find it at least a little easier to come to agreement over such standards than over specific issues. For example, the parties might build momentum by agreeing on acceptable sources of datawhich is not as easy as it might soundor they might agree on a set of governing principles. Stein and Lewis note that agreeing on a principle is only a first step; subsequently, the parties will inevitably negotiate over how that principle might be exercised or applied.. Create a vision of the future. In discussions with counterparts, Kelman suggests promoting a shared vision of a peaceful world; redefining the criteria for group loyalty; counteracting the pressures that make militancy and aggressive posturing the politically safest course ... moving from zero-sum thinking to a win-win approach in negotiation<and developing communication patterns to allow new information to challenge old assumptions.. Create framework agreements. Statements of principles or framework agreements are devices used in building a structured process around key standards that encourage steady progress and interim success. In developing this structure, it s important to prioritize issues. In Hopmann s words, Once the parties have established a joint diagnosis of the problem, including their own interests and needs regarding its solution, they should begin to explore alternative formulas that may provide an overarching framework for a solution.. Generate Options Generate options in brainstorming sessions. Openly brainstorming with counterparts entails certain risks. But if these risks can be managed, such collaboration has significant potential benefits. The more you brainstorm, the more likely you are to find new ways to approach the problem. It can be helpful to brainstorm in groups, perhaps first with your team and then with counterparts. Challenge assumptions. Successful negotiators constantly challenge their own assumptions. Invent first and evaluate later. In brainstorming sessions, it is common practice to invent many options before evaluating them. A lot of impractical ideas are usually generated in these sessions, but as thoughts are rapidly introduced and one idea leads to another, something innovative and potentially feasible can result. In a separate process of evaluation, most ideas will be discarded,
    

but one or two may be refined into workable options, perhaps even a solution. Manage the press. It is always necessary to have an effective media strategy. At this stage in particular, separating negotiators from the pressand even from their own constituentshelps create a risk-free environment that is conducive to creative thinking. Forge Solutions

The deal isn t complete when you simply get an agreement. The deal is done when you and the other parties actually implement the agreement. Many things can go wrong between the handshake that signals agreement and successful implementation. You can take important steps to improve your chances of success, of getting firm commitment at the close of your deal, and meaningful implementation beyond it. This final phase typically involves several important steps: . Use Existing Relationships

Carefully evaluate win-win proposals. No matter how successful the effort, it s rare that a complete win-win solution will be found, and therefore realistic to expect that some degree of compromise will be required, a compromise in which everyone gives something to get something, but not every fundamental problem is solved. Build confidence in the process of trade-off. Kelman makes this observation: Reassuring the other is rarely cost-free; the reassurance involves some concessionor at least is perceived to do soand it often generates some domestic criticism. Thus, it is important that reassurance occur in a context in which the initiator receives a visible return. Reciprocity itself is a source of mutual reassurance in that it signals to the parties that their concessions will not simply be pocketed by the other, but are likely to advance their own interests. Strengthen relationships. Develop a pattern of reciprocal compromise. Small confidencebuilding measures can eventually lead to the more weighty compromises needed to break stubborn substantive deadlocks. Build momentum. In developing an effective agenda, Kelman points out that it s usually helpful to move gradually toward an overall settlement by first achieving agreements on a series of less contentious issues. In this way, the process will begin to build momentum. Stick to deadlines. As you dissect a complex problem into component parts and address each component sequentially, it s often helpful to agree with your counterpart on interim deadlines or targets, and then try to stick to them. Setting this pattern helps to establish professionalism and can help create the momentum necessary to break inevitable logjams. But this approach can be used against whichever party is more eager for an agreement. Even when both parties genuinely want a deal, it can at certain times be effective to allow flexibility into the process and extend a deadline. This tactic will be more effective if not overused. 5.5: Verify Commitments Focus on Implementation
  

. Confirm Agreement with Ratifiers . Assure that Commitments are Verifiable . Develop a Dispute Resolution Process . Establish Enforcement Mechanisms . Get Commitments in Writing Use Existing Relationships In most cases, relationships that have developed in the earlier phases of the negotiation will continue to have value in the implementation phase. It s in your best interest to take advantage of them. As the parties approach implementation, they know the positions and interests of other signatories. and usually have developed informal working relationships with one another working in caucuses or coalitions toward mutually accepted goals.. These hard-won bits of knowledge and carefully-built relationships should be leveraged in the final, difficult phase of implementation, which will focus on new sets of issues, concerns, and interests involved more with the detailed rules and procedures needed to get it done than with the broader norms and principles of getting to yes.. Confirm Agreement with Ratifiers The last phase of the negotiation is invariably the most difficult, when a deal appears to be in the works, there will be a temptation to reopen issues that had appeared to be settled in the expectation that the other party or parties will not want to throw away a hard-won agreement. This idea may well occur to those whom you are representing, not just to the other side. This is easier to manage if, throughout the negotiating process, you have regularly confirmed the essential elements of the agreement with your ratifiers. Assure that Commitments are Verifiable It s also important to determine that the commitments are verifiable, or at least that there is some sort of monitoring mechanism, and that all relevant ratifiers are comfortable with the verification methods.
 

For example, the START I Treaty between the U.S. and the Soviet Union (later extended to the successor states of the Soviet Union) required substantial reductions in each side s strategic nuclear weaponsa very important agreement, also notable for its verification provisions. The U.S. State Department makes this clear: A significant aspect of the START Treaty s regime lies in its use of rigorous, equitable and verifiable methods to monitor its implementation. The right to perform on-site inspections and other verification measures will continue for the duration of the Treaty, in order to verify compliance. In addition, data exchanges and notifications on each side s strategic systems and facilities as well as exchanges of telemetry data from missile flight tests will help to maintain confidence in the status and level of the Parties strategic forces. In the language of your written agreement, it s important to make your performance contingent on the performance of your counterpart, giving them incentive to comply and providing you a way out of a deal that may be turning bad. If you are asked to commit to an agreement without a general understanding along these lines, or containing provisions that you will not be able to verify, you should reevaluate your assessment of the commitment of the other parties. Develop a Dispute Resolution Process
    

To strengthen the relationship between former adversaries, few accomplishments carry as much weight as the successful implementation of a difficult agreement. Successful implementation and the improved relationships that follow can help lead to future agreements. Outline Keys to Successful Negotiation I. Prepare Extensively 1. Build from the Conflict Analysis Framework a. Actors=> Stakeholders Know your constituents and counterparts. Focus on ratifiers and potential spoilers. Study broad cultural traits and individual styles. b. Issues => Positions Know all side s stated positions. c. Root causes => Interests Consider all sides fundamental interests. Understand your own interests. Consider opportunities for joint gain. d. Resources => Leverage Estimate leverage. Know your BATNA and estimate your counterparts . e. Phase => Ripeness Address issues prior to the outbreak of hostilities. Consider the costs of stalemate. Aim high< But be realistic 2. Determine your approach II. Cultivate Relationships Know whom you are facing. 1. Build trust. a. Do no harm.
  

Even if you haven t used a third party in the process to get to an agreement, you might consider a third party to help with verification and dispute resolution. International or regional organizations are often involved in these kinds of efforts. Establish Enforcement Mechanisms You must also consider what kinds of sanctions will be in place if one side or another does not live up to the agreement. Better to consider this during the negotiations, and immediately thereafter, while commitments are fresh and original negotiators are still in place, rather than defer it until after there has been a breach. Get Commitments in Writing Although in some cases a handshake or other form of informal commitment might be sufficient, the only reliable way to memorialize an agreement is to ensure that you have all understandings in writing. The act of written documentation forces everyone to take a second look and think through the full ramifications of what has been agreed, and is especially important for future implementation, when memories will not be fresh, if the individuals who originally negotiated the agreement are even available at all. Look Ahead

b. Remind negotiators why you are there.

c. Depersonalize problems. d. Create rapport. e. Establish balanced procedures. f. Reach out to ratifiers. 2. Listen carefully. a. Active listening b. Use listening techniques. c. Show genuine interest in the other side s problem. d. Ask questions to understand the other side s perspective. e. Acknowledge opposing views even when you don t agree. f. Check your understandings. 3. Present your case clearly a. Provide a transition to your case b. Resist the temptation to rant. c. Ensure that your message is heard. 4. Harness relationships. a. Avoid escalating wars of words. b. Try to stay positive. 5. Use leverage wisely. a. Use warnings rather than threats. b. Offer positive inducements that meet or protect underlying interests. III. Focus on Interests and Needs
  

d. Ask Why?. 5. Establish reciprocity a. Try to view the conflict through your counterpart s eyes b. Protect and advance your own interests. c. Remain firm and fair. 6. Encourage collaboration. a. Frame problem-solving as self-interest. b. Use Track II and III efforts. c. Work with a third party d. Continue to build relationships over time. IV. Solve Problems Find ways to bridge differences 1. Separate problems a. Separate substance from process. b. Separate difficult issues. c. Separate and regroup individuals. 2. Establish criteria. a. Separate issues from standards. b. Create a vision of the future. b. Create framework agreements. 3. Generate options a. Generate options in brainstorming sessions b. Challenge assumptions


1. Avoid distractions c. Invent first then evaluate later. 2. Maintain caution< d. Manage the press. a. Be strategic about what you reveal 4. Forge Solutions. b. Don t be intimidated. a. Carefully evaluate win-win proposals. 3. But consider the first cooperative move b. Build confidence in the process of trade-off 4. Address different kinds of interests. c. Strengthen relationships. a. Shared interests d. Develop a pattern of reciprocal compromise. b. Compatible and conflicting interests. e. Build momentum. c. Tangible, intangible and procedural interests.


f. Stick to deadlines V. Verify Commitments Focus on Implementation Use Existing Relationships 1. Confirm Agreement with Ratifiers a. Assure that Commitments are Verifiable 2. Develop a Dispute Resolution Process 3. Establish Enforcement Mechanisms 4. Get Commitments in Writing 5. Look ahead Exercise: The United States and the People's Republic of China This case study will give you an opportunity to apply some of what you've learned about negotiation to a real-world situation from a few decades ago, which has direct bearing on a very important international relationship of the present day. The passage below describes negotiations that led to normalization of relations between the United States and the People's Republic of China in the 1970s. As you read the information, pay particular attention to the following topics: Positions & Interests Relationships & Confidence-Building Measures Leverage & Process Deferral & Compromise Normalizing Relations In the early years of the Cold War, relations between the United States and the People s Republic of China were competitive and confrontational. Ideological and cultural differences exacerbated mutual suspicions. But eventually, through careful negotiations, they forged, in the words of Richard Solomon, a relationship in which the two countries could eliminate the hostility of the Cold War era, manage continuing differences over the future of Taiwan in a non-confrontational manner, and cooperate in limited measure in dealing with shared international political, and security problems, primarily the military threat to both countries from the Soviet Union. Broadly examined, these negotiations demonstrate many of the principles in this course. The U.S. recognized Chiang Kai-shek s Nationalists as the government of China throughout the Chinese Civil War, which began in 1927. After the 1949 victory of Mao Zedong s Communists, the U.S. did not recognize Mao s People s Republic of China (PRC), which controlled mainland China, and
    

instead continued to support Chiang s Republic of China (ROC), composed of Taiwan and a few smaller islands. The ROC retained China s permanent seat on the U.N. Security Council. The Korean War (1950-1953) marked the low point for U.S./PRC relations, as the two countries fought in support of South and North Korea respectively. Meanwhile, the Who lost China?. issue made any change in U.S. China policy explosive in the U.S. domestic context. In the 15 years following the Korean War, the U.S. and PRC conducted mid-level discussions in Warsaw that made little progress on core differences.2 By the late 1960s, the positions of the U.S. and PRC had changed little, particularly on Taiwan. The U.S. maintained that the legitimate government of China was the ROC, and continued economic, diplomatic, and military cooperation with it, including a defense treaty, a U.S. military presence, weapons sales, and trade. The PRC called Taiwan an unresolved internal matter, opposed all U.S. support for the ROC, and sought China s permanent seat on the U.N. Security Council. Nonetheless, the U.S. and PRC shared strategic interests in improving bilateral relations, especially to balance growing Soviet power. These shared interests grew in priority for the U.S. Kissinger s visit, the parties agreed on the following statement: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is part of China. The United States Government does not challenge that position.. This statement, along with a mutual commitment to normalize U.S./PRC relations and oppose Soviet hegemony, opened the door to Nixon s visit the following February, where the two sides negotiated and issued the joint Shanghai Communiqu. In it, the U.S. reaffirmed its interest in a peaceful settlement of the Taiwan question by the Chinese themselves,. and noted the ultimate objective of the withdrawal of all U.S. forces and military installations from Taiwan.. However, the U.S. also made clear that it would only reduce its military forces there as tensions diminished, and refused to address the question of its continuing arms sales to Taiwan. In fact, the U.S. argued that sudden removal of its security umbrella from the region would worry allies like Japan and South Korea, and could lead them to increase their own military capabilities in ways that would be worrying to China. Thus, while acknowledging that the Chinese on both sides of the strait must settle the Taiwan question themselves, the U.S. helped ensure that it would indeed be resolved peacefully and not as the result of PRC military action. The U.S. also enhanced its negotiating leverage with the Soviet Union in nuclear arms control and other issues. Overall, through a balanced arrangement of general agreement on long-term principles and deferral of their specific application, the Shanghai Communiqu opened the doors for trade, cultural exchanges, and informal diplomatic relations between the U.S. and PRC.
   

For a number of years after the Shanghai Communiqu, a variety of political and security factors prevented further progress in U.S./PRC relations. In 1978, as part of an effort to get negotiations back on track, U.S. President Jimmy Carter explicitly reaffirmed his commitment to the principles of the Shanghai Communiqu and sent his National Security Advisor, Zbigniew Brzezinski, to build on the work of Nixon and Kissinger. In subsequent negotiations, the U.S. and China agreed that the U.S. would make a statement regarding the peaceful settlement of the Taiwan problem and that Beijing would not contradict that statement.11 The U.S. would also maintain a full range of relations with Taiwan on an unofficial basis..12 The U.S. would withdraw from its defense treaty with the ROC within a period of one year, and would remove its remaining troops from Taiwan. China gained a commitment that the U.S. would withdraw from its defense treaty with the ROC within one year, and also remove its remaining troops from Taiwan. Again, as a way of helping deter any military action by the PRC, the U.S. refused to consider stopping the sale of weapons to Taiwan, but held out the future prospect of a negotiated resolution of the issue. Under these conditions, the U.S. and the PRC established formal diplomatic relations on January 1, 1979. Self-Study Exercise Positions and Interests: 1. Describe opposing positions held by the two sides (the U.S. and the PRC) at the outset of negotiations. 2. Describe shared interests motivating the two sides to work towards an agreement. Relationships and Confidence-Building Measures: 3. Describe the relationship between the two sides during the Cold War. 4. Describe the two sides uses of confidence-building measures. Leverage and Process: 5. Describe sources of leverage held by the two sides. 6. Describe elements of process apparent in the narrative. Deferral and Compromise:


7. List difficult issues that the two sides deferred for a later date. 8. List areas where the two sides found compromise.