apuntes international negotiations

8/3/2019 Apuntes International Negotiations

1/24

Direct versus Indirect CommunicationCreated byBC Holmes. Last edited by David Jones, 3 years ago.

Last week, Lawrence and Michaelpresented a their experiences at the Secrets of AgileTeamwork workshop. The presentation was great, and the topic related to people'sbehaviour (a topic that we can stand to talk more about). But throughout the panel, I foundmyself nagged by disagreements with the material. "That's the stuff of blog-entries," Ithought.

One area that I found myself suspicious of was the discussion of a notion called "TheFacade" or "The Mask". The Facade, in this context, referred to the stuff that I know aboutmyself that I choose not to reveal. The concept, according to the presenters, is importantmostly for helping people to see that there's often stuff going on in conversations thatpeople might not be aware about.

Michael acted out this kind of dialogue:

Person 1: Why don't you do a Lunch and Learn?

Person 2: Well, I don't really have time.

Person 1: We could make some time by freeing up your schedule.

Person 2: But I don't have a topic

Person 1: We have a list of topics you could pick from.

Person 2: But there are people more qualified than me.

...

What Person 2 hasn't directly said is "I'm painfully shy", but if that's information that

influencing the nature of the conversation, it may seem strange to Person 1. The entireconversation seems to be "suggestion" followed by "reason the suggestion can't be taken".

Hearing this, I was reminded about conversations I've had in online fora about the nature ofdirect communication versus indirect communication. To me, the conversation seems like aclassic "indirect communicator talking to direct communicator" mis -alignment.

And I guess that one of my big beefs with this notion of The Facade is that theconversations I've had about direct versus indirect communication have gotten away fromapplying value judgements to either form, whereas I feel like the language around Facade(a word which means, "the face of a building" or "a deceptive outward appearance") seemsmuch more judgemental .

Here are some interesting snippets of conversation I've had. In one example, a friend ofmine told how her mother-in-law would come over to her house, look at the window, andsay, "My, what a nice, fresh breeze!" According to my friend, it took her a long time torealize that what the mother-in-law meant was "It's very cold in here." Further, if my friendwould say something like "would you like me to close the window?" her mother-in-lawwould say "I certainly wouldn't want to tell you what to do in your own house!"

This is a pretty clear (albeit polarizing) example of indirect communication. When thisexample was first brought up, there was a lot of outcry from the direct communicators wholamented, "How could this woman possibly be understood?" (Direct communicators often
http://i-proving.ca/space/BC+Holmeshttp://i-proving.ca/space/BC+Holmeshttp://i-proving.ca/space/BC+Holmeshttp://i-proving.ca/space/David+Joneshttp://i-proving.ca/space/David+Joneshttp://i-proving.ca/space/Lawrence+Ludlowhttp://i-proving.ca/space/Lawrence+Ludlowhttp://i-proving.ca/space/Michael+Buckleyhttp://i-proving.ca/space/Michael+Buckleyhttp://i-proving.ca/space/David+Joneshttp://i-proving.ca/space/Lawrence+Ludlowhttp://i-proving.ca/space/Michael+Buckleyhttp://i-proving.ca/space/BC+Holmes


2/24

have the " mindreader " complaint about indirect communicators: "you expect me to be amindreader ; you never just say things plainly.")

This example started a huge debate that was initially very judgemental about indirectcommunication. The conversation used phrases like "passive-aggressive trap-laying".

Contrary to what direct communicators think, when indirect communicators communicate

with each other their communication is very information rich and unambiguous.

Another friend of mine is Japanese-American, and she once told a story about businessconversation in Japan. Imagine this situation: you have to take a day off on Monday to takeyour kid to the dentist. One way of handling this situation is to say to your manager, "I'mnot going to be here on Monday; I have a family obligation." That works. Simple, directcommunication.

And, in Japan, tremendously rude, according to my friend. There's no room in theconversation for your manager to participate. Really, all that's left for your manager to sayis "okay." Here's a better form of the conversation, according to my friend:

Employee: I hope things aren't too busy on Monday.

Manager: Why do you hope that?

Employee: I think I might not be here on Monday.

Manager: Oh, why? What's happening?

Employee: Well, my daughter needs to see the dentist.

Manager: Oh, I hope it's just a routine visit.

And this was an interesting reversal of the judgement . In this example, directcommunicators are seen as brash and impolite.

Some of my friends who come from southern U.S. states also talk about the politenessrequirements of conversation as well. For them, conveying facts is far less important thatbeing polite and ensuring that the person you're speaking to is comfortable. For directcommunicators, this sounds very foreign.

The only way out of this conflict is to recognize that these different communication stylesexist, and people believe in them for legitimate reasons, and neither is an objectively betterstyle than the other (although there are contexts where it might be useful to use one formover the other).

So it's with some annoyance that I see a pretty clear example of indirect communicationbeing described as "information the speaker chooses not to share" and that this wholeexample is used to describe a "facade" that people have.

Maybe some of this is lost in translation: perhaps if I heard the original speakers, I wouldn't

find these terms as troubling.

Using 'I-statements'inShare1

'I-statements' contribute to effective communication and effective conflict resolution.
http://tmp/svf37.tmp/javascript:void(0);http://tmp/svf37.tmp/javascript:void(0);http://tmp/svf37.tmp/javascript:void(0);http://tmp/svf37.tmp/javascript:void(0);http://tmp/svf37.tmp/javascript:void(0);


3/24

When we state something as a fact that is really just our subjective viewpoint it can

have the following impacts upon ourselves and others:

1. It can alienate people from us because their experience may not be the same as

ours.

Of course, people will always have different opinions about things, but when someone

states theirs as if it is a fact, this can lead others to see them as rigid in their view ofthe world or not someone they want to engage with.

For example: If I say:

Working in this place is impossible, no-one pulls their finger out and the company is

going down the pan.

...others may not have such a dim view of the

company and may feel quite offended that I shouldmake such a statement.

They may feel it necessary to defend the company,or themselves, or even to 'attack back' and make

some statements about me that they also see as

being factual!

Such a situation will often lead to a disconnection

and distancing between all involved as it generatesa win/lose dynamic regarding the respective views they hold. Someone must be 'right'

if the views are portrayed as facts! And so, someone must be wrong - and it ain'tgonna be me!

If, instead I were to use 'I-statements', I could say it this way:

I find it really difficult working here, I think that some things don't get done that needto be done and I'm worried about the future of the organisation .

I'm not suggesting this as a 'script' as I think it often sounds very false to use

suggested wordings from others.You may be able to create a different I-statement and quite possibly a better one. Bylooking at a statement made in this way we can look at the consequences for future

communication and for resolving conflict.

Using an I-statement acknowledges that the viewpoint is our own and not necessarily a

fact about the situation.

My 'difficulty working here' could be down to my own present shortcomings and so to

identify the difficulty can lead to identification of a corresponding training need I have,or a present lack of experience that only time will allow me to gain.

Or it may lead to identification of circumstances that affect my ability to work that canbe influenced and improved by myself and others.

The point is we can review the situation in order to try to improve it rather than seethe problem as a permanent 'fact' about the company, inextricably linked to other

'facts' about the people within it.

Also, in using the I-statement, I am not alienating others, nor am Iintroducing an interpersonal conflict to the already difficult situation. I am accepting

ownership of my experience and acknowledging that it may not be one that is sharedby others.

Retweet this page to yourTwitter followers:
http://www.addthis.com/bookmark.php


4/24

This connects quite strongly with the next aspect of using I statements.....

There's nothing can be done about it, it's hopeless....

2. When we state something about a situation as a fact rather than acknowledge it asour own experience, it implies we are powerless to have any influence over our

responses to the situation.

This is a common way in which conflicts become entrenched and, seemingly to those

involved, irresolvable. Again, the situation reduces to a win/lose situation where if oneperson's fact is right then the other's must be wrong.

'You can't talk to them.''Those kinds of people will never change.'

'Work is never going to make you happy.''The Council doesn't care.'

'My boss is a bully'

Alternatives to the above using I-statements could be (and again you may have

others):

'I find it difficult to talk to them'

'I seem to get the same reaction from them whenever we meet up.''I haven't found my work to be something I enjoy'

'I have often felt that the Council hasn't understood the difficulties I am having.''I feel intimidated in the presence of my boss.'

All of these allow for a review of our own responses to the situation that exists. If I feelintimidated when my boss is around, what is it that he does that I respond to in that

way? Why do I respond in that way? How could I respond in a way that would feel lessdiminishing of myself?

See the page on Questioning for more about how to questionourselves and others to support the creation of ways forward in

difficult situations.

Similar explorations of all of the I-statements can follow on

from them. All of them allow a self-exploration of our ownexperience and the possibility of creating new responses to the

situations.

The point is that using I-statements allows for the possibility ofexploration, creativity and change in response to the situation.

When the situations are described as 'facts' this implies they are fixedand unchangeable.

Nothing is fixed and unchangeable.

Effective Alternatives Analysis In Mediation:

BATNA/WATNA Analysis Demystified

Listening, Summarisingand Questioning- The Simple, Effective

Skills of ConflictResolution.

Click here to find out

more about this ebooklet .
http://www.communicationandconflict.com/questioning.htmlhttp://www.communicationandconflict.com/questioning.htmlhttp://www.communicationandconflict.com/conflict_resolution_skills.htmlhttp://reddit.com/submithttp://www.communicationandconflict.com/questioning.htmlhttp://www.communicationandconflict.com/conflict_resolution_skills.html


5/24

byJessica Notini

January 2005

-Print

-Email

-Comment

-Subscribe (free)

BATNA: Best Alternative to a Negotiated Agreement

WATNA: Worst Alternative to a Negotiated Agreement

Popular Attribution to Fisher & Ury , Getting to Yes.

Introduction:

In most settlement negotiations, parties are influenced consciously or unconsciously by theirassessment of their alternatives to a negotiated agreement. The better their alternatives, themore they may push for a more favorable settlement. The worse their alternatives, the moreaccommodating they may be in the settlement negotiations. Unfortunately, parties frequentlyfail to undertake an accurate and comprehensive analysis of their alternatives and, therefore,negotiate poorly based on unrealistic and uninformed ideas of what they might obtain in the

absence of a negotiated agreement. Mediators who can help parties to perform a high qualityand comprehensible alternatives analysis will often improve negotiation strategy significantly.

This article explains the concept of alternatives analysis and presents a method for conductingan analysis with parties in mediation, including many of the considerations that may affect theparties perception and use of the analysis.

Essential Concept of BATNA and WATNA:

What are the best (BATNA) and worst (WATNA) possible outcomes along a particular pathif I try to get my interests satisfied in a way that does not require negotiation with the otherparty? In other words, what are my "win" and "lose" scenarios along any given alternative path,and how likely are these outcomes or something in between?

Important Note:

Do not confuse "alternatives" analysis with "options" analysis. In mediator terminology,options are ideas that the parties may generate within the context of a negotiation forpossible resolution. The parties evaluate these options, formally or informally, to see how wellthey satisfy their interests. The parties may consider some ideas to be favorable or "winning"options and others to be "losing" options, but all are theoretically possible bases for resolutionbetween the parties to the dispute even though some are not realistic or would never beacceptable to both parties. The options analysis remains within the context of the negotiationwith the other party and is not the same as "BATNA/WATNA" analysis.

Alternative Paths:

Parties may have more than one path they can follow that does not involve negotiation with theother party. The most common alternative path in many mediated cases is litigation orarbitration, in which parties seek a judgment from a judge, jury or arbitrator that they hope will

satisfy their interests better than anything they might be able to obtain in a negotiation with theother party. In this instance, the analysis focuses on the "win" and "lose" outcomes in court.However , other alternative paths that might exist could include :

Seeking results from a higher authority within an organization

Going to the press

Holding a strike

Seeking a new job
http://www.mediate.com/articles/notini1.cfmhttp://www.mediate.com/articles/notini1.cfmhttp://tmp/svf37.tmp/javascript:void();http://www.mediate.com/people/personprofile.cfm?auid=91http://www.mediate.com/articles/notini1.cfmhttp://www.mediate.com/articles/notini1.cfmhttp://tmp/svf37.tmp/javascript:void();


6/24

Seeking new (suppliers, buyers, distributors, employees etc.)

Lumping it (and hoping the situation will improve)

Each of these alternative paths has its' own best and worst outcomes. Parties may wish toanalyze the outcomes possible along more than one alternative path, depending upon whichstrategies they might realistically pursue separate from negotiation with the other party. Ofcourse, the analysis itself is often used to decide whether or not it makes sense for a party topursue a particular alternative.

Purpose of the analysis:

The purpose of the analysis is to help parties make informed decisions about possible optionsfor resolution or a deal. It is almost always helpful to compare possible outcomes alongalternative paths to actual proposals on the table in a negotiation before making a decisionwithin the negotiation. If an alternative looks highly attractive and is highly probable, a partymay choose to reject a proposal that is significantly less satisfactory. On the other hand, ifproposed options in the negotiation look reasonable or better in comparison to probablealternative outcomes, a party may feel more comfortable accepting a proposed deal. Theanalysis assists the parties in deciding if a particular resolution is in their best interests or not. Italso helps mediators to ground parties in reality and prevent impasse by focusing them onactual possibilities rather than unformulated dreams.

In some cases, a party will reject a proposed resolution even though the probable alternativesare clearly less attractive in a "business" sense. However, the exercise is still useful in thisinstance because:

1. The parties are making their choices having considered and with full knowledge of theseprobable alternative outcomes (i.e. "with their eyes wide open").

2. The exercise highlights the existence of other interests, beyond "business" sense, that aredriving the party. Knowledge of these interests may be helpful to continued negotiation. At aminimum, parties gain clearer understanding of their interests and the value they are placingupon them.

Mediators should also keep in mind that they may have different values, risk tolerance levelsand approaches to decision-making than the parties and take care to respect those

differences. Again, the purpose of the analysis is to educate and promote informed decision-making, not to force settlement or impose the mediator's idea of what makes sense.

Form/Content of the Analysis:

Following this section, is a sample BATNA/WATNA analysis in a real estate sale case using aformat that is useful in assessing the litigation alternative. The basic formula for the analysis,where money is involved, can be described as "Initial Result" - "Costs" = "Final Outcome."Where money is not involved, the analysis is sometimes simplified to a review of Outcomesand Costs. A second example is provided below using this format where the alternative pathconsidered is not litigation.

The form of analysis presented in this outline is somewhat different than that contained indecision-tree risk analysis which serves essentially the same function but is usually morecomplex, breaking the analysis down into key turning points and multiple projections leading to

a variety of final results. For example, in a personal injury case, decision-tree analysis mightlook at the separate probabilities for establishing each of the legal elements involved (duty,breach, causation and damages) in order to reach an overall probability for win or loss with theexpected values for those outcomes in light of the assigned probabilities. Both tools areextremely valuable. The format presented here may be more user-friendly for mediators,parties and attorneys in the average case.

As demonstrated in the subsequent examples, outcomes and costs should be developedcarefully and specifically so that they can be analyzed and understood by the party andpotentially explained to the other side. It is important to assign probabilities to the different


7/24

predicted outcomes or an estimated range of probability if counsel is wary of being too specific.The probabilities give greater meaning to the numbers. For example, a win of $100,000 maysound wonderful to a plaintiff until he or she hears that there is only a 5% chance of such aresult.

Note: the defendants analysis is not necessarily a mirror-image of the plaintiffs analysisbecause the parties may be making different predictions regarding outcomes and may have

different costs.Any outcome, best or worst case, has costs. These costs can be both monetary and non-monetary and should be detailed to the extent possible. The costs used in the analysis areusually limited to future costs that might be avoided in the event that the mediation ornegotiation is successful. Costs already incurred are considered water under the bridge. Inother words, they are less relevant because settlement at the present time cannot preventthese costs from being incurred.

Many clients underestimate or fail to account for costs when imagining potential best and worstcase outcomes, focusing more on initial results rather than final outcomes. They also tendto overlook the time value of money, forgetting that $100,000 received two or three years fromnow, has a lesser value when translated into present day dollars. Finally, they may overlookthe fact that they should calculate the expected value of their final outcomes using the

probability of those results (i.e. where the probability of a $100,000 judgment is only 5%, theexpected value of this outcome is .05 x $100,000 = $5,000). Mediators who understand thesefinancial realities and can assist clients in examining them have powerful tools.

In addition to best and worst case outcomes, it is often helpful to include a mid-case scenarioor a most likely case scenario that generally falls somewhere within the outer parametersestablished by the win and lose scenarios. This can help reduce the potentially distractingeffect of extreme win and lose parameters. In some circumstances, however, a case is clearlyall or nothing and development of a mid-case scenario does not apply.

The content and use of a BATNA/WATNA analysis will be affected by variables such ascontingency fee arrangements, the use of in-house counsel, the involvement of insurancecompanies, statutory or contractual fee-shifting and the possibility of bankruptcy. Thesevariables may have a significant impact on costs or the perception of costs. For example,

where one party is represented by an attorney on a contingency fee basis, that party may bemuch more inclined to roll the dice because the bulk of the burden of a loss falls upon theattorney in the event of a loss (WATNA). Similarly, a company or government institution usingin-house counsel may discount the costs associated with such counsel as simply part of theiroverhead.

BATNA/WATNA analysis can also lose meaning in some contexts, such as cases wherebankruptcy is a realistic possibility. In that case, the focus of the analysis shifts completely fromtheoretically possible legal outcomes to one partys actual resources and the value that theparty places on avoiding bankruptcy. In other words, the party in danger of bankruptcy may notcare that there is a 95% probability of a significant loss in court if they will choose bankruptcyand avoid the impact of that loss. They may, however, be willing to pay an amount that iswithin their abilities and seems reasonable to them based upon their desire to avoidbankruptcy.

As suggested earlier, BATNA/WATNA analysis can also be less influential where partiessimply refuse to give it meaning because they can afford to do so and have other interests thatare more important to them. For example, an employer may be willing to risk significant losses,at high costs, to maintain a reputation that they do not settle certain types of claims. Or someinsurance companies may routinely refuse to settle certain cases beyond certain amountsbecause they are following standard procedures that they believe serve them well overall, andthey are willing and able to bear the costs involved in continued litigation. Of course, mediatorsmay still find that that a well done BATNA/WATNA analysis is more persuasive than expectedor admitted with clients such as these.


8/24

LITIGATION PATH

Plaintiffs BATNA

(probability estimate

60%)

Mid-Case Scenario


20%)

WATNA

(probability estimate 20%)

Plaintiff proves seller

was aware of and failed

to reveal these

problems with the

property, and must

reimburse for damages.

$45,000 termite damage

$20,000 faulty

foundation

$10,000 illegal boundary

fence$10,000 emotional

distress

$80,000 Initial Result

- Costs

- $30,000 Attorneys

Fees

(Receive)

$55,000 Final Outcome

Other Non-monetary

Costs:2 years in litigation

Stress

Time off for litigation-

related activities

Plaintiff proves

awareness of some

problems but not

others. Court less

inclined to grant

emotional distress.

$40,000 termite

damage

$5,000 emotional

distress


v- Costs

- $30,000 Attorneys

Fees

(Receive)

$15,000 Final

Outcome

Other Non-monetary

Costs:2 years in litigation

Stress

Time off for litigation-

related activities

Plaintiff fails to prove any

seller liability.

$0 Initial Result

- Costs

- $30,000 Attorneys Fees

(Pay Atty )

(-$30,000) Final Outcome

Other Non-monetary Costs:2 years in litigation

Stress

Time off for litigation-related

activities

No sense of vindication

Defendants BATNA


50%)

Mid-Case Scenario


30%)

WATNA

(probability estimate 20%)

Plaintiff fails to prove

any seller liability.

$0 Initial Result

- Costs

- $20,000 Attorneys

Fees

(Pay Atty )

(-$20, 000) Final

Plaintiff proves

awareness of some

problems but notothers. Court less

inclined to grant

emotional distress.

- $10,000 illegal

boundary fence

- $5,000 emotional

Plaintiff proves seller was

aware of and failed to reveal

these problems with theproperty, and must reimburse

for damages. But defendant

has different estimates for

some damages.

- $30,000 termite damage

- $15,000 faulty foundation


9/24

Outcome

Other Non-monetary

Costs:

2 years in litigation

StressTime off for litigation-

related activities

distress

- $15,000 Initial

Result

- Costs

- $20,000 AttorneysFees

(Pay Atty and Other

Party)

(- $35,000) Final

Outcome

Other Non-monetary Costs:2 years in litigationStressTime off forlitigation-relatedactivities

- $10,000 illegal boundary

fence

$5,000 emotional distress


- Costs

- $20,000 Attorneys Fees

(Pay Atty and Other Party)

(-$80,000) Final Outcome

Other Non-monetaryCosts:2 years in litigationStressTime off for litigation-related

SELF-HELP PATH

Neighbor A is considering whether to resolve issues with Neighbor B regarding irritating noiseand messy trees by using a pressure campaign (calls late at night, verbal threats to familymembers, throwing tree droppings in driveway, calling the police and so on). Neighbor Aanalyzes how Neighbor B may react, from compliance with requests to retaliatory actions.

Neighbor A - BATNA Neighbor B - BATNA

Outcomes:Neighbor B promptly eliminates all

offensive noise and removes trees at

own expense.

Costs:

Neighbor B is upset by theharassment and has nointerest in a supportive,good neighbor relationship,but does not retaliate.

Harassment campaign iswearing on Neighbor A (itsnot easy making all thosecalls)

Neighbor As reputationsuffers because otherneighbors hear aboutNeighbor As behavior.

Outcomes:Noise is not eliminated and trees

remain in place. Neighbor B retaliates,

increasing the noise, reporting

Neighbor A to housing authority for

permit violations, having dog poop on

lawn etc.

Costs:

Pressure campaign is highlystressful

Complete loss of relationship asneighbors

Sense of living in war zone

Need to deal with HousingAuthority

Need to deal with dog poop andother issues


10/24

Probability:

Depends upon assessment of

Neighbor Bs personality, but usually

would be quite low (5-10%) given

typical human reaction to

harassment.

Probability:

Again, depends upon Neighbor Bs

personality, but this might also be

somewhat low as it is an extreme

reaction. A mid-case scenario might

have the highest probability.

AVOIDANCE PATH

If Neighbor A decided to pursue the pressure campaign described above, and Neighbor B wasconsidering alternatives to negotiation, one path he/she might consider would be do nothingand hope it goes away.

Neighbor A - BATNA Neighbor B - BATNA

Outcome:

Neighbor B does not reduce noise,

remove trees or in any way respond to

Neighbor A. Neighbor A decides to end

harassment campaign in light of lack of

response.

Costs:

Stress of self-control in light ofprovocation

Children upset by threats

Stress of dealing with police

Stress of enduring harassment

campaign while it endures No good neighbor relationship

with Neighbor A

Probability:

Very low given Neighbor As apparent

personality, initiating the harassment

campaign. 2%?

Outcome:

Neighbor A escalates the conflict in

serious ways. Fear of violence.

Possible official action to force tree

removal. Police citation regarding the

noise.

Costs:

Stress of living in war zone

Serious psychological traumasuffered by children

Stress of dealing with police

Terrible relationship with

Neighbor A Expense of tree removal and

efforts in any proceedings tofight required removal

Loss of relationships withother neighbors

Probability:

This may also be low in probability as

it is extreme. (5-10%) A mid-case

scenario is likely to have the highest

probability.

Initial Presentation of Analysis Within a Mediation

When suggesting development of BATNA/WATNA analyses or review of previously preparedanalyses, mediators should keep in mind the purpose discussed above and, in fact, share thispurpose with the parties. By explaining the educational purpose and method of analysis,mediators can reduce the tendency to perceive this tool as "blackmail" or inappropriate arm-twisting.


11/24

When BATNA/WATNA analysis is almost inevitable, as in cases already in litigation, it is agood idea to ask attorneys to prepare and discuss the analysis with their clients prior to themediation. Advantages of this approach are that the analysis may be more thoughtful givenmore time to prepare and the clients have had more time to absorb the implications prior to themediation. Possible disadvantages of this approach are that attorneys may be less honestlyspontaneous about their predictions of litigated outcomes with the mediator. Of course, many

attorneys undertake this analysis prior to mediation or negotiation as part of their own casepreparation.

In fact, negotiation experts frequently advise careful analysis and development of at least oneBATNA and WATNA prior to entry in negotiation. Preparation of a good BATNA can strengthena party's leverage in the negotiation. Whether or not a good BATNA exists or can bedeveloped, parties are well advised to enter negotiations with accurate information aboutpossible alternative outcomes because this gives them a better sense of how to manage thenegotiation. For example, parties with weak BATNAs or highly undesirable WATNAs may wantto take care not to burn any bridges and/or prepare to minimize the damage this informationmay cause if known by the other party.

If you believe it is likely that an examination of BATNA and WATNA will be pertinent during themediation, it may be helpful to allude to the possible need for this kind of analysis early in theprocess, in the mediator's opening statement. A simple statement should be sufficient,suggesting that it may be helpful to the parties, at some point in the process, to examine theiralternatives outside of mediation so as to compare them to options on the table in themediation. This can be stated without using the terms "BATNA" and "WATNA" which are likelyto be unfamiliar and confusing to the parties.

Timing and Context of Analysis:

As with any other tool, mediators will need to use their judgment in deciding whether tosuggest a BATNA/WATNA analysis and in deciding how and where to perform it. It is oftenmost useful to conduct this analysis after information-gathering and exploration of interests andprior to beginning distributive bargaining (i.e. typically, the money negotiation).

If the parties appear to be reaching an interest-based resolution with relative ease, themediator may decide not to undertake a BATNA/WATNA analysis at all, or only in a cursory

fashion as part of reality-testing before closure. The reason to consider carefully whether or notto inject BATNA/WATNA analysis in this context is that, by its nature, the analysis can seemnegative or threatening and may inject an undesired tone into a negotiation that is proceedingamicably.

However, if parties clearly have substantial work to do in order to reach resolution and themediator anticipates hard bargaining, the analysis is probably recommended. When conductedprior to formulation of initial offers and counter-offers, the analysis helps to ground the partiesin reality and formulate initial numbers that bear a reasonable relationship to possibleoutcomes outside of the mediation and are therefore, hopefully, less shocking to the otherparty. In any event, the analysis usually serves as a tool to help the parties and the mediatorexplain offers and counter-offers.

Typically, it is wise to develop the analysis in private session with each of the parties and theirattorneys. Those who do not welcome the analysis are more likely to go along with it in private.Moreover, in a confidential caucus, parties and attorneys tend to be more forthcoming andrealistic about their alternatives. When not faced with the need to posture in front of the otherparty or the fear of losing face, many attorneys actually welcome the opportunity to educatetheir clients about the risks of the case with the support of the mediator. If the mediatorbelieves that the parties would also benefit from hearing a persuasive presentation on possibleoutcomes by opposing counsel, the analysis can always be reviewed in a subsequent jointsession. Note: Even when developed in private, confidential sessions, mediators should notassume that parties or attorneys have been completely forthcoming about their alternativesanalysis.


12/24

Who Provides the Information for the Analysis:

When the analysis focuses on possible litigated outcomes, attorneys are the natural sources ofinformation. Ideally, they have the litigation experience and knowledge of the venue in whichthey operate to be able to provide "expert" information about possible best and worstoutcomes. Even if they are less knowledgeable than the mediator might like, they will expect tobe consulted if this analysis is undertaken. When the analysis focuses on alternative paths

other than litigation, the parties themselves and/or other types of experts or resources may beneeded to provide information about possible outcomes.

When parties are in litigation but are not represented by attorneys or do not have attorneyspresent in the mediation, development of the analysis is usually more difficult. Sometimes,mediators can prompt parties to consult with an attorney prior to mediation, or by phone duringthe mediation. If this is not possible, the mediator may try to guide the parties through theanalysis, but few parties will have the legal expertise necessary to make reasonablepredictions about litigation outcomes. If the mediator provides the information for the analysis(assuming that the mediator is competent to do so), the mediator risks losing neutrality and/orthe appearance of neutrality. Whether or not it is appropriate for a mediator to predict legaloutcomes is controversial. However, if a mediator chooses to do so, the mediator is on safestground when suggesting possible ranges of outcomes rather than highly specific outcomesand probabilities, and taking care to remind the parties that this does not constitute legaladvice and cannot substitute for the opinion of their own attorney.

Quality of Analysis:

The more accurate the analysis, the more helpful it will be to the parties in making informeddecisions. Mediators can try to improve the quality of analysis by taking steps, as necessary, toeducate the parties and their representative regarding the analysis. They can also guide theparties through the elements of the analysis during private sessions so as to ensure that it isdone thoroughly, and play devil's advocate and ask reality testing questions when attorneysmake predictions that seem overly exaggerated or inaccurate. However, when first drawing outthe analysis, the mediator may find it more effective to accept a party or attorney's estimationsfor possible best and worst outcomes. It is usually easier to question and refine theseestimates using the other party's predictions and information rather than risking more directcontradiction by the mediator.

Resistance:

Parties and attorneys rarely resist undertaking the analysis if they understand and believe thatit is in their own best interests, serving as a useful tool for informed decision-making. The toneand confidence of the mediator in presenting this tool are usually significant to acceptance. Ifparties feel pressured or fear that it will be used as a hammer against them, or sharedinappropriately with the other party, they will naturally resist.

If parties refuse to undertake the analysis despite helpful education by the mediator, themediator may want to explore the reasons behind the refusal to better understand the interestsdriving the resistance. If these can be discovered, the mediator may be better able to negotiateon the process with the party or understand why the analysis would not be beneficial in thatcase.

Sometimes attorneys assure mediators that they have undertaken the analysis with the partiesbut say that they do not want to share it with the mediator. Again, this can be explored andnegotiated as with any other tool in the process. Even when attorneys have refused to sharetheir own thinking with the mediator, the mediator may gain helpful information by sharing theirown or the other party's estimate of a range of possible outcomes and noting how the attorneysreact or correct them.

Use/Transfer of BATNA/WATNA Information between the Parties:

As with many subjects discussed in private session, parties and attorneys may want to keepsome or all aspects of the analysis confidential. However, use of this information is often an


13/24

extremely useful tool in educating the parties to better understand their risks. Parties andattorneys almost invariably overestimate their best case scenarios and underestimate theirworst case scenarios for many reasons based in human psychology. One of the mediator'stasks is to help parties make more realistic assessments of their case to improve decision-making. Mediators with knowledge of these psychological tendencies can educate the partiesabout them and increase their receptivity to more realistic BATNA and WATNA assessments.

A significant reality check on any party's BATNA/WATNA analysis is the other party'sassessment of the same case from the other side. In particular, one party's assessment of theirbest case outcome may look quite different from the other party's assessment of their worstcase outcome. Parties will often give the mediator permission to share with the other party theirbest case prediction when they understand that it gives the mediator leverage to move theother party in their direction towards settlement. They may be more concerned about themediator sharing their worst case scenario and any costs involved on their side (best or worstcase) but this information is often less helpful as leverage.

Mediators should, nevertheless, seek permission to share any information gained during theanalysis that they believe will help the parties to better understand the case and the otherparty. For example, a mediator may discover during BATNA/WATNA analysis that the attorneyfor one of the parties is serving on a contingency fee basis. This attorney may be reluctant todisclose this fact (and it may be best not to do so) but the mediator may want to explore withthe attorney whether it would actually be helpful for the other party to understand that theyhave less leverage than they think if they are assuming incorrectly that the costs of litigationare mounting for both parties, with both parties sharing the same types of costs in goingforward.

When parties, experts or attorneys provide estimates regarding the probability of particularbest, worst and mid-case outcomes, it is usually helpful to inquire about the basis for theseestimates. In a litigated matter, this leads naturally into a discussion of the strengths andweaknesses of the case on both sides. In a non-litigated matter, the mediator should lead theparties in a thoughtful analysis of their reasons for believing that a particular outcome is moreor less likely. As with other information, parties may be evaluating strengths and weaknessesquite differently, and it can be highly educational for them to learn how the other partyassesses the probabilities and why. The more reliable and detailed the information they have

to support their analyses, the more likely they are to be persuasive in the mediation. Again,most parties and attorneys are willing to allow the mediator to share information that theybelieve will be helpful in persuading the other party that they over-estimating their strengths orunder-estimating their weaknesses.

When sharing any information garnered during the analysis, mediators should keep in mind theeducational tone. It is very easy for parties to react in a defensive, hostile manner to ananalysis that seems threatening and/or highly exaggerated. Mediators can also remind partiesthat this is a "background" analysis that can be set to the side as parties return to negotiationwithin the mediation. They do not need to conclusively determine what would happen court oralong another alternative path during the mediation, but rather get a clearer sense of probableoutcomes as possible reference points for their negotiations.

Connection to Development of Settlement Proposals:

In a litigated matter where money is likely to be a component of the negotiation, the specificelements identified as part of the possible outcomes explored in a BATNA/WATNA analysisoften serve as the basis for development of settlement proposals. For example, in anemployment discrimination case, the predicted outcomes may be based on elements that acourt would include in an award such as back pay, front pay, emotional distress and so on.Many parties will naturally use these same factors to formulate their offers and counter-offers inmediation, usually working toward a settlement amount that lies within the parameters createdby the best and worst case outcomes in court. It is very difficult to reach a settlement if one orboth parties are seeking an amount outside of these parameters.


14/24

Where the negotiation focuses less on money or other specific outcomes that might beawarded by a court, the BATNA/WATNA analysis may be less influential in the development ofsettlement proposals and may be completely unrelated to what the parties decide to do. Ineither case, parties should be reminded that the BATNA/WATNA analysis is a backdropanalysis for the negotiation and that they are free to settle their dispute in any mutuallyagreeable fashion, perhaps completely unrelated to the outcomes possible along alternative

paths.Conclusion:

BATNA/WATNA analysis can be highly influential in case assessment and settlement. Manyclients need to consider intelligently whether a possible negotiated settlement makes sense orwhether they would prefer to pursue some other alternative that might yield better results orinvolve lower costs. Mediators who can walk their clients through a carefully detailed andorganized BATNA/WATNA analysis are providing a valuable service. Use of a format like theone presented here, along with clear understanding of how to use the analysis, should improvethe mediators ability to work effectively with this tool.

Mapping the Way

to Negotiation ...By: Sarah Cumberland

Successful negotiation in business takes skill but it is also about tactics.

SARAH CUMBERLAND tracks a communications consultant through this

minefield and maps a course to a win-win situation.

Whether you're a lone contractor or manage a medium-sized business,

you're bound to encounter the complex world of negotiating in your business

transactions. It takes skill and know-how to ensure a positive outcome.Negotiating is all about reaching consensus between two parties, and it

assumes that both sides have power and can move towards agreement, sayscommunications and management consultant and coach, Jenny Strachan.

One of the most important requirements for an equal negotiation process isa strong mental attitude. "If you've been invited to negotiate, then you have

a right to be involved, to be heard, to state your opinion clearly," Strachansays. "Don't go into victim mentality. It's better not to enter the negotiation

process at all if you think you just have to accept whatever the other partywants. You end up trading off too much. Too many concessions can devalue

who you are and erode the value of your own name (or that of your

organisation ) in the marketplace."

For example, you sell your services at a certain price. You desperately want

a particular contract so you drop your price. Immediately you are devaluingyourself in the market and it will be very hard to bring your price back up

again.

Meeting Place

The location for the negotiation process is important. Arrange to meet in


15/24

neutral territory such as a hotel foyer or coffee shop. If you are called in tothe other party's office space, this becomes a power-base for them, and

gives them the opportunity to employ a range of tactics to assert their

power. These may include :

keeping you waiting so as to force a decision

deliberate interruptions at critical points

stacking the boardroom with a team of people

"Instead of allowing them to make you feel unimportant, make it clear that

you have a strong sense of who you are, that you are an equal party inthese negotiations," she says. "Hold your ground and turn the situation

around to an equal power-base. That is, if you have been kept waiting

unnecessarily, state that you don't appreciate being kept waiting andrequest the meeting be rescheduled in a new location (neutral ground)."

If you find yourself facing a sea of suits when you expected a one-on-one

meeting, assert yourself, saying something like: "This is obviously a briefing.

I'm happy to take part. I'll take the information from today away with me

and this might help with my negotiations later on."That is, reschedule on your own terms. You should walk away from a

meeting if you feel you are being compromised. Remember, you have rights.

Don't just allow the other side to have all the power.

A lot of people will manipulate time, Strachan warns. "Try not to enternegotiations under a sense of urgency. If you have a deadline, you may

make more concessions than you should to bring about an outcome."

One stalling tactic is to defer to authority. The other party might say: "I

don't have the level of authority to sign off on that amount of money. I'llhave to consult my boss/the board." They may use this strategy to force you

to drop your price to their 'level of authority'. "It's important to be steadfast

under fire," says Strachan. "You have to be able to sit back and listen. Be

quietly confident. Don't appear too keen to put all your cards on the table."

This allows the other party to 'show their hand', stalling the negotiation so

that you can be clear about what they want.

Be Prepared

Before going to any meeting, you should be thoroughly prepared. What is of

true value to you? What are your non- negotiables ? These could include therate at which you are willing to work, the hours you will work, and access to

technology. If you need access to their computers, and you can't afford to

purchase your own equivalent system, then there is no point taking the

discussion further if the other side can't provide this.

What is your power-base? Do you represent a company that is strong in themarket? Or, is the other side's reputation and influence something you can

benefit from? Negotiating is about building relationships. If you care about

having a long-term relationship with the other business, you may beprepared to concede more.

Alternative Plan


16/24

Always have a BATNA (Best Alternative To Negotiated Agreement), Strachansays. "This is your position of strength, your dealing card. It means you

aren't locked into an untenable position but can walk away from the processif you have other options to explore." An example might be if you've

tendered for lots of different contracts and there's a possibility one of thesemight be accepted. You can use these other contracts as your BATNA.

Although you might not definitely have these contracts yet, you can appearconfident with your negotiators, saying that you won't drop your rate when

there are others in the marketplace who will pay the specified amount.

Strachan tells her clients to compare any negotiation process with that ofpurchasing a house. You never just accept the price the agent tells you. You

are prepared to negotiate. And your BATNA in that situation is that there'sanother house down the road that also meets your needs so you don't have

to buy the first one.

Think the negotiation process through from the other party's point of view.Consider what they want and think about how you can meet those needs

without giving up what you want. What is their position in the marketplace?

What do they want from you? What are you willing to trade and why? Whatsort of value can you add? For example, providing telephone follow-up after

your service is of no great cost to you, but might be something you can

trade on because it is of value to the other side.

The Other Side

Know your competitors and their prices. The other side's BATNA might be

that they say they can get someone else to perform the job at a lower rate.If you know that isn't so, then you can call their bluff knowing that they'll

probably back down.

State quite clearly: "I'm not taking myself out of the market when you're not

paying me market value." Demonstrate to them that this is the market rateby stating that if you are unable to fulfil other contracts so as to do theirwork, then you'll have to employ someone at that same rate. You are just

keeping your business afloat.

Negotiating takes a lot of interpersonal skill to be truly effective. Listen welland ask lots of questions. If you don't feel comfortable with your level of skill

as a negotiator, Strachan recommends taking some training.

* Jenny Strachan is a communication and management consultant andpersonal coach. She is co-author of the award-winning publication The

Business of Communicating, and is currently in the process of conductingthe orientation for staff involved in the Sydney 2000 Olympic Games. She is

a facilitator in negotiation at the University of Western Sydney and instructor

for a series of leadership skills and conflict resolution courses for women runby IIR Development. She can be contacted on 0419 014 173 or by email

[email protected]

Guidelines for Negotiation

keep the people and the problem separate

don't negotiate about your positions of power

focus on the interests, not the positions


17/24

create options for mutual gain

remain objective

Prepare For Negotiation

establish goals

research the facts

clarify the issues

identify the real needs

predict needs of other parties

establish the common ground

prepare your case

prepare and anticipate the case of the other parties

identify the needs and interests of the other parties

Closing the Negotiation

check the viability of possible agreement

confirm areas of agreement

make a record

decide on following action

Act of GodFrom Wikipedia, the free encyclopedia

Jump to: navigation, search

For other uses, seeAct of God (disambiguation).

The examples and perspective in this article may not represent a

worldwide view of the subject . Please improve this article and discuss

the issue on the talk page. (July 2010)
http://en.wikipedia.org/wiki/Act_of_God_(disambiguation)http://en.wikipedia.org/wiki/Wikipedia:WikiProject_Countering_systemic_biashttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edithttp://en.wikipedia.org/wiki/Talk:Act_of_Godhttp://en.wikipedia.org/wiki/Talk:Act_of_Godhttp://en.wikipedia.org/wiki/File:Tornado_Damage,_Illinois_2.JPGhttp://en.wikipedia.org/wiki/File:Tornado_Damage,_Illinois_2.JPGhttp://en.wikipedia.org/wiki/Act_of_God_(disambiguation)http://en.wikipedia.org/wiki/Wikipedia:WikiProject_Countering_systemic_biashttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edithttp://en.wikipedia.org/wiki/Talk:Act_of_God


18/24

This tornado damage to an Illinois home would be considered an "Act of God"

for insurance purposes

Act of God is a legal term [1] for events outside of human control, such as sudden floods orothernatural disasters, for which no one can be held responsible.

Contents[hide]

1 Contract law

2 Tort law

2.1 United States of

America

2.2 England and

Wales

3 Other uses

4 See also

5 References

[edit] Contract law

In the law ofcontracts, an act ofGod may be interpreted as an implied defence under therule ofimpossibility orimpracticability . If so, the promise is discharged because ofunforeseen occurrences, which were unavoidable and would result in insurmountable delay,expense, or othermaterial breach.

For example, suppose an opera singer and a concert hall have a contract. The singer

promises to appear and perform at a certain time on a certain date. The hall promises tohave the stage and audio equipment ready for her. However, a tornado destroys the hall amonth before the concert is to take place. Of course, the hall is not responsible for thetornado. It may be impossible for the hall to rebuild in time to keep its promise. On theother hand, it may be possible but extraordinarily expensive to reconstruct on such shortnotice. The hall would argue that the tornado was an act of God and excuses itsnonperformance via impossibility or impracticability.

In other contracts, such as indemnification, an act of God may be no excuse, and in factmay be the central risk assumed by the promisore.g., flood insurance orcrop insurancethe only variables being the timing and extent of the damage. In many cases, failure by wayof ignoring obvious risks due to "natural phenomena" will not be sufficient to excuse

performance of the obligation, even if the events are relatively rare: e.g., the year 2000problem in computers. Under the Uniform Commercial Code, 2-615, failure to delivergoods sold may be excused by an "act of God" if the absence of such act was a "basicassumption" of the contract, but has made the delivery "commercially impracticable".

Recently, human activities have been claimed to be the root causes of events until nowconsidered natural disasters. In particular:

water pressure in dams releasing geological fault (earthquake in China)[2]
http://en.wikipedia.org/wiki/Tornadohttp://en.wikipedia.org/wiki/Illinoishttp://en.wikipedia.org/wiki/Floodhttp://en.wikipedia.org/wiki/Natural_disasterhttp://en.wikipedia.org/wiki/Act_of_Godhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=1http://en.wikipedia.org/wiki/Contracthttp://en.wikipedia.org/wiki/Godhttp://en.wikipedia.org/wiki/Impossibilityhttp://en.wikipedia.org/wiki/Impracticabilityhttp://en.wikipedia.org/wiki/Material_breachhttp://en.wikipedia.org/wiki/Indemnityhttp://en.wikipedia.org/wiki/Flood_insurancehttp://en.wikipedia.org/wiki/Crop_insurancehttp://en.wikipedia.org/wiki/Year_2000_problemhttp://en.wikipedia.org/wiki/Year_2000_problemhttp://en.wikipedia.org/wiki/Uniform_Commercial_Codehttp://en.wikipedia.org/wiki/Commercially_impracticablehttp://en.wikipedia.org/wiki/Earthquakehttp://en.wikipedia.org/wiki/Tornadohttp://en.wikipedia.org/wiki/Illinoishttp://en.wikipedia.org/wiki/Floodhttp://en.wikipedia.org/wiki/Natural_disasterhttp://en.wikipedia.org/wiki/Act_of_Godhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=1http://en.wikipedia.org/wiki/Contracthttp://en.wikipedia.org/wiki/Godhttp://en.wikipedia.org/wiki/Impossibilityhttp://en.wikipedia.org/wiki/Impracticabilityhttp://en.wikipedia.org/wiki/Material_breachhttp://en.wikipedia.org/wiki/Indemnityhttp://en.wikipedia.org/wiki/Flood_insurancehttp://en.wikipedia.org/wiki/Crop_insurancehttp://en.wikipedia.org/wiki/Year_2000_problemhttp://en.wikipedia.org/wiki/Year_2000_problemhttp://en.wikipedia.org/wiki/Uniform_Commercial_Codehttp://en.wikipedia.org/wiki/Commercially_impracticablehttp://en.wikipedia.org/wiki/Earthquake


19/24

geothermal injections of water provoking earthquakes (Zurich, Switzerland,2003currently on trial)[citation needed ]

drilling provoking mud volcano (Java, ongoing)[3]

Such events are possibly threatening the legal status of Acts of God and may establishliabilities where none existed until now.

[edit] Tort law

[edit] United States of America

In the law oftorts, an act of Godmay be asserted as a type of intervening cause, the lack ofwhich would have avoided the cause or diminished the result of liability (e.g., but for theearthquake, the old, poorly constructed building would be standing). However, foreseeableresults of unforeseeable causes may still raise liability. For example, a bolt of lightningstrikes a ship carrying volatile compressed gas, resulting in the expected explosion.Liability may be found if the carrier did not use reasonable care to protect against sparksregardless of their origins. Similarly, strict liability could defeat a defense for an act of God

where the defendant has created the conditions under which any accident would result inharm. For example, a long-haul truck driver takes a shortcut on a back road and the load islost when the road is destroyed in an unforeseen flood. Other cases (and the preferredfederal rule in the United States) find that a common carrier is not liable for theunforeseeable forces of nature. Memphis & Charlestown RR Co. v. Reeves, 1870, 77 U.S.176.

A particularly interesting example is that of "rainmaker" Charles Hatfield who was hired in1915 by the city ofSan Diego to fill the Morena reservoir to capacity with rainwater for$10,000. The region was soon flooded by heavy rains, nearly bursting the reservoir's dam,killing nearly 20 people, destroying 110 bridges (leaving 2), knocking out telephone andtelegraph lines, and causing an estimated $3.5 million in damage in total. When the city

refused to pay him (he had forgotten to sign the contract), he sued the city. The floods wereruled an act of God, excluding him from liability but also from payment.

[edit] England and Wales

An act of God is an unforeseeable natural phenomenon. Explained by Lord Hobhouse inTransco plc v Stockport Metropolitan Borough Council as describing events;

(i) which involve no human agency

(ii) which is not realistically possible to guard against

(iii) which is due directly and exclusively to natural causes and

(iv) which could not have been prevented by any amount of foresight,

plans, and care.

[edit] Other usesSee also: Theodicy

The phrase, act of God, is sometimes used to attribute an event to divine intervention.Often it is used in conjunction with a natural disasteror tragic event: A miracle, by contrast,is often considered a fortuitous event attributed to divine intervention. Some consider itseparate from acts of nature and being related to fate ordestiny[4]
http://en.wikipedia.org/wiki/Geothermalhttp://en.wikipedia.org/wiki/Geothermalhttp://en.wikipedia.org/wiki/Zurichhttp://en.wikipedia.org/wiki/Zurichhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Drillinghttp://en.wikipedia.org/wiki/Javahttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=2http://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=3http://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Duty_of_carehttp://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Charles_Hatfieldhttp://en.wikipedia.org/wiki/San_Diego,_Californiahttp://en.wikipedia.org/wiki/Telephonehttp://en.wikipedia.org/wiki/Telegraphhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=4http://en.wikipedia.org/wiki/John_Hobhouse,_Baron_Hobhouse_of_Woodboroughhttp://en.wikipedia.org/wiki/Transco_plc_v_Stockport_Metropolitan_Borough_Councilhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=5http://en.wikipedia.org/wiki/Theodicyhttp://en.wikipedia.org/wiki/Natural_disasterhttp://en.wikipedia.org/wiki/Miraclehttp://en.wikipedia.org/wiki/Destinyhttp://en.wikipedia.org/wiki/Destinyhttp://en.wikipedia.org/wiki/Destinyhttp://en.wikipedia.org/wiki/Geothermalhttp://en.wikipedia.org/wiki/Zurichhttp://en.wikipedia.org/wiki/Wikipedia:Citation_neededhttp://en.wikipedia.org/wiki/Drillinghttp://en.wikipedia.org/wiki/Javahttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=2http://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=3http://en.wikipedia.org/wiki/Torthttp://en.wikipedia.org/wiki/Duty_of_carehttp://en.wikipedia.org/wiki/Strict_liabilityhttp://en.wikipedia.org/wiki/United_Stateshttp://en.wikipedia.org/wiki/Charles_Hatfieldhttp://en.wikipedia.org/wiki/San_Diego,_Californiahttp://en.wikipedia.org/wiki/Telephonehttp://en.wikipedia.org/wiki/Telegraphhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=4http://en.wikipedia.org/wiki/John_Hobhouse,_Baron_Hobhouse_of_Woodboroughhttp://en.wikipedia.org/wiki/Transco_plc_v_Stockport_Metropolitan_Borough_Councilhttp://en.wikipedia.org/w/index.php?title=Act_of_God&action=edit&section=5http://en.wikipedia.org/wiki/Theodicyhttp://en.wikipedia.org/wiki/Natural_disasterhttp://en.wikipedia.org/wiki/Miraclehttp://en.wikipedia.org/wiki/Destiny


20/24

Christian theologians differ on their views and their interpretations of scripture. Some saythat God causes a disaster: R. C. Sproul speaks ofDivine Providence: In a universegoverned by God, there are no chance events[5] Others indicate that God may allow atragedy to occur.[6] Yet others just accept unfortunate events as part of life[7] and referenceMatthew 5:45 (KJV): for he maketh his sun to rise on the evil and on the good, andsendeth rain on the just and on the unjust.

You are here: Home / II. High context versus low context

II. High context versus low context

In order to communicate successfully you have to consider the cultural differences and thepredominating communication process in individualistic and collectivistic cultures. It isbest to explain theses differences in terms of low- and high-context communication.Context has to do with how much you have to know before you can communicate

effectively.When workers from high-context and low-context cultures have to work together oftenproblems occur by the exchange of information. These problems can be categorized asdifferences in direction, quantity and quality. At differences in direction employeesfrom high-context cultures like China and France adapt to their good friends, families andalso to close colleagues (in-group members). They communicate with them intensively(quantity difference) and exchange specific/detailed information about many differenttopics.The result is that every in-group member is constantly up-to-date with the factsaround the business.

In comparison to high-context cultures low-context cultures like USA and Germanyorientate on many people of their daily life because they dont differentiate as much as

high-context cultures between in- and out-groups. So their direction of communication isorientated on personal personal characters and referred to situations (direction difference).They mostly communicate within their out-groups in a broad and diffuse way (quantitydifference). Within communication they exchange information just to the necessary extentso that work can be done and they dont discuss or exchange information constantly in theirwork environment and colleagues (quality difference).

In China communication tends to be very efficient because of their information-flow atwork and in privacy. They discuss everything in advance and consider meetings as anofficial ceremony where the already commonly agreed decision will be announced. Thisis important in the way of giving and keeping face. The Americans and Germans incontrast inform the participating attendants in a meeting about the hard and necessary facts.

The decission-making process takes place within the meeting. To French it is similar withtheir Asian counterparts. They are also well informed before they meet each other. Muchexplicit and detailed discussions would probably seen as an insult because everything isalready clear.

High-context means that most of the information is either in the physical context orinitialized in the person, while very little is in the coded, explicit, transmitted part of themessage. (Hall, 1976, p 79). In comparison to the meaning of low-context communicationis the mass of information is vested in the explicit code (p 70). *2
http://en.wikipedia.org/wiki/R._C._Sproulhttp://en.wikipedia.org/wiki/Divine_Providencehttp://en.wikipedia.org/wiki/Gospel_of_Matthewhttp://en.wikipedia.org/wiki/KJVhttp://www.via-web.de/http://www.via-web.de/http://en.wikipedia.org/wiki/R._C._Sproulhttp://en.wikipedia.org/wiki/Divine_Providencehttp://en.wikipedia.org/wiki/Gospel_of_Matthewhttp://en.wikipedia.org/wiki/KJVhttp://www.via-web.de/


21/24

To understand what someone really meant in a conversation and to avoidmisunderstandings it is important to realize how it was said. In high-context systemspeople expect from their interlocutor that he or she knows what the message of thecommunication was. This can be done without that it was specifically told Chinese andFrench use a high-context communication. They place great importance on ambience,decorum, the relative status of the participants in a communication and the manner ofmassages delivery. In France it might be hard to feel fully accepted for outsiders withintheir culture because of their big diffuse connections. In comparison members ofindividualistic cultures using low-context communication like Germans, Americans andFinns sometimes ignore those differences from high-context countries cultures. In case of ameeting where those countries from low- and high-context cultures would have to work anddiscuss the French and especially the Chinese would not interact and express theirdisagreement or reservations. For Chinese issues, circumstances and relationships are asimportant as work so they would comment only in a more private or appropriate occasion.

Chinese people tend to be reserved which is considered as active behaviour in collectivisticcultures. They first need to build up an interpersonal relationship a foundation where it ispossible to find the right level of context. In contrast low-context cultures they argue about

each others opinion within the decission-making process and take discussions in their ownhands to come to an agreement. Within this process members of low-context tend to beprecise and provide just the required information and in case of silence it has to be filled.but this is just a generic statement. In contrast the Finns regarding to silence have adifferent cultural behaviour. Silence is seen as polite and doesnt have to be replaced withcommunication. In this point they differ immensely from the Americans who are seen asthe characteristic low-context country. They need to know what is going on and have to beprovided with detailed background information. Information is freely available in anAmerican company.

In contrast the Germans try to hide information which is sacrificed even within a companyor department. French are a high-context culture. They assume that the listener knows

everything. It can happen that the French will think the Americans think they are stupidbecause they start explaining everything, and vice versa. *3

When dealing with different people from high- and low-context cultures you always haveto be aware of your interlocutors cultural origin. This helps to avoid misunderstandingsand creates a better basis for further discussions.

*2 Communication with strangers by William B. Gudykunst and Young Yun Kim(1997), page 65*3 Managing Cultural Differences: Strategies for Competitive Advantage, Lisa Hoecklin(1995), page 98

SILENCE

One of the most powerful tools in a negotiator's toolbox is silence: absolute, blank-faced,quiet. It can be used when confronted with a tough situation, when given news that is toogood to be true, or when you just don't want to say anything stupid.


22/24

Many of us feel compelled to fill the air with words and noise; in fact, it seems that we fearsilence. Silence can be uncomfortable; this is particularly true for talkative people (i.e.extroverts). What makes it worse is that talkative people are usually talking aboutthemselves; this is exactly what you don't want to do when you negotiate. Fast talking,extroverted sales people may be the worst negotiators on the planet.

So why do we dread silence? I am not a therapist, but I think it is because we fear thatsomeone might catch us at our game or see us for what we really are. Silence is a starknaked reality.

Silence can buy you time to think. When you find yourself in a tricky spot in a negotiation,stop everything, shut up and listen. It makes you look smart and it gives you time to thinkabout what you should do next. Meanwhile, because you are not talking you are not makingany concessions or giving information to the other side.

It takes practice to be silent. One trick is to stop talking and take notes slowly, which looksreally intelligent (although you could be just doodling). Silence can be uncomfortable forthe other party as well; what you want is for them to speak first and fill the empty spacewith information to help you. By definition, when you are silent you are a better listener.

When you are silent it also cues the other side to speak. Silence can force the other party to"anchor" (i.e. state their position) first; this can create a strategic advantage for you.

An abbreviated form of silence that is very effective is to incorporate long pauses in yourspeech. This can be almost as uncomfortable as pure silence. Long pauses can trap the otherparty into finishing your sentences and bumping their jaws. Practice by pausing for a fivesecond count between your key points; it will seem like an eternity to the other party.Expect them to leap forward filling in the silence; let them speak.

After you master silence, you may occasionally find that others may play the same game aseffectively as you. At some point staring at each other waiting for the other to speak seemspointless. In this case, you can just restate what you said previously. Often this restatementchallenges the other party to reply. Listen to what they say.

"Silence is a fence around wisdom". (German Proverb)

John Bradley Jackson brings street-savvy sales and marketing experience from SiliconValley and Wall Street. His resume also includes entrepreneur, angel investor, corporatetrainer, philanthropist, and consultant. His book is called First, Best, or Different: WhatEvery Entrepreneur Needs to Know About Niche Marketing.

________________________________________________________________________

The Small Business Library

January 14, 2001

The Top 10 Keys to Successful NegotiationHardly a day passes that we are not involved in some type of negotiation. This negotiation may be

as simple as attempting to convince a friend to see the movie we choose or as complicated as

negotiating a percentage of a business offering or mediating a labor dispute. At any rate, effective


23/24

negotiation is an art... one that requires preparation and practice in order to be successful.

Consider these ten tips for preparing for negotiation and improve your odds for a win-win

resolution.

1. Know what you REALLY want.Many people enter negotiation only to find they did not have a clear desired outcome

defined in their own mind. Write down your desired outcome as concisely as possible anduse this outcome as the center point of your preparation.

2. Know your opposition.Learn as much as possible about who you are negotiating with, what they want, theirstrengths and weaknesses, and their likes and dislikes.

3. Consider the impact of timing and method of negotiation.Whenever possible, negotiate face to face. It is easier to say NO over the telephone andin writing. Initiate the negotiation process so that you have the advantage of preparationand timing.

4. Prepare your presentation... point by point.Outline your presentation carefully. Place emphasis on benefits to the other party.

5. Anticipate reactions, objections and responses.If possible, brainstorm with others who have had similar negotiations to get a jump onwhat to expect. For each objection or reaction, list positive responses, alternatives andexamples that counteract the negatives.

6. Structure your presentation to ensure agreement on one or two points at the beginning ofthe negotiation.For example, "I think we can agree right away that we have a problem and that weboth/all want to resolve it." Initial agreement on minor issues or points early on in thenegotiation process sets a positive atmosphere for agreement in later, more significantstages.

7. Determine paybacks and consequences for each party in the negotiation.A clear understanding of paybacks and consequences makes it easier to determine whenand how to make concessions and when and how to stick to your requirements and

requests.

8. Prepare options rather than ultimatums.An ultimatum should be used only as a last resort when you are sure you can back it upand the other party knows you can back it up. Even then, in virtually every negotiationthere are options and alternatives that reduce defensiveness and lead to positiveresolution for all parties.

9. Get comfortable with silence.Many negotiators feel compelled to jump in with arguments and comments each timethere is a pause in the interaction. Practice holding back on comments and responses.Silence can be a very powerful negotiation tool.

10.Close all negotiations by clearly outlining agreement.When agreement or conclusions have been reached and you are ready to end yournegotiation, review the agreement that has been reached. Then, end your negotiation ona positive note... commending those involved and emphasizing the progress made

Making Sense of Cross Cultural Communication

21 Apr 2009


24/24

by admin

3 Comments

Geert Hofstede cultural dimensionsGeert Hofstedes Cultural Dimensions

National cultures can be described according to the analysis of Geert Hofstede . These ideaswere first based on a large research project into national culture differences acrosssubsidiaries of a multinational corporation (IBM) in 64 countries. Subsequent studies byothers covered students in 23 countries, elites in 19 countries, commercial airline pilots in23 countries, up-market consumers in 15 countries, and civil service managers in 14countries. Together these studies identified and validated four independent dimensions ofnational culture differences, with a fifth dimension added later.

If you follow the links below you will find a map of the world for each cultural dimension,which enables you to quickly see how similar or different countries or regions are.

Power Distance

Individualism Masculinity Uncertainty Avoidance Long-Term Orientation

The drawbacks of applying the Hofstede Model

The Hofstede Model of Cultural Dimensions can be of great use when it comes toanalyzing a countrys culture. There are however a few things one has to keep in mind.

Firstly, the averages of a country do not relate to individuals of that country. Even thoughthis model has proven to be quite often correct when applied to the general population, onemust be aware that not all individuals or even regions with subcultures fit into the mould . It

is to be used as a guide to understanding the difference in culture between countries, not aslaw set in stone. As always, there are exceptions to the rule.

Secondly, how accurate is the data? The data has been collected through questionniares ,which have their own limitations. Not only that, but in some cultures the context of thequestion asked is as important as its content. Especially in group-oriented cultures,individuals might tend to answer questions as if they were addressed to the group he/shebelongs to. While on the other hand in the United States, which is an individualistic culture,the answers will most likely be answered and perceived through the eyes of that individual.

Lastly, is the data up to date? How much does the culture of a country change over time,either by internal or external influences?

For more indepth information you can find this model clearly outlined in Geert Hofstedesbook, Cultures and Organizations, Software of the Mind.
http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/power-distance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/power-distance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/individualism/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/individualism/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/masculinity/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/masculinity/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/uncertainty-avoidance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/uncertainty-avoidance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/long-term-orientation/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/long-term-orientation/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/power-distance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/individualism/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/masculinity/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/uncertainty-avoidance-index/http://www.clearlycultural.com/geert-hofstede-cultural-dimensions/long-term-orientation/

apuntes international negotiations

Documents