Harvard Negotiation Law Review

Power Imbalances in Mediation: A student note by Amrita Narine

By Amrita Narine*

In recent years, mediation has become increasingly popular and now represents a viable option for parties in a variety of scenarios. Despite its rising popularity, mediation has received mixed responses because of the potential to entrench preexisting power imbalances. This paper will explore the usefulness of mediation when dealing with an imbalanced power dynamic.

In part I, this paper will focus on defining power within mediation. Part II will explore the critiques of mediation in situations where there is an imbalanced power dynamic and specifically delve into gendered imbalances and employment imbalances. After exploring the critiques and responses to them, part III will focus on specific techniques that a mediator can use to help balance out the power dynamics at play and offer best practices for dealing with power imbalances.

Read the full paper here.

*Amrita Narine is a third year JD student at Harvard Law School. She currently serves as the Managing Editor for the Harvard Negotiation Law Review and previously served as Submissions Editor. She graduated summa cum laude from the Macaulay Honors Program at CUNY Baruch where she received a Bachelor of Arts in Sociology and Corporate Communications.

An Introduction to The Advocates and the Work of Professor Roger Fisher: A Prequel to the Program on Negotiation

 

By R. Lisle Baker, Professor of Law, Suffolk University Law School, HLS ‘68 and former advocate on The Advocates.

Before Roger Fisher founded the Program on Negotiation at Harvard Law School, he was nationally recognized for having created an award-winning public affairs television show, The Advocates, which aired on the Public Broadcasting System. Over the course of its five year season, beginning in 1969 (plus additional shows in 1978-79 and in 1984), The Advocates previewed some of the ideas that appeared in Roger’s many writings and, eventually, as part of the Program on Negotiation itself. As such, it may be helpful to HNLR readers to know more about the show.

The Advocates used a modified trial format to debate what Roger called an “important public trouble,” not in the abstract, but in terms of what Roger called “a decidable question”—a situation where someone, whether a public figure or an individual citizen at home, had to decide what to do. Viewers in the studio audience or at home in their living rooms were invited to weigh in by mail, and during the first season, a remote audience on location somewhere else in the country offered their opinions as well. He saw this as part of an effort to help citizens make “public affairs your affairs.”

The Advocates was produced initially through a joint effort by WGBH in Boston and KCET in Los Angeles, two flagship stations in the public broadcasting network. The Advocates addressed issues ranging from civil disobedience to same-sex marriage. In some cases, the shows are more than four decades old, but many of the issues are still timely.

RogerFisher

            [Above is a photograph of the portrait of Professor Roger Fisher by Polly Thayer given by Professor and Mrs. Fisher in 1992, which hangs in the offices of the Program on Negotiation in Pound Hall at Harvard Law School; Photo by Narine Karapetyan; reproduced with permission from the Program on Negotiation and Ms. Karapetyan. ]

When Roger was later teaching the Negotiation Workshop at Harvard Law School, in which I was a participant, he once said that preparing for trial and preparing for negotiation were very similar, except that in negotiation, “the judge you have to persuade is sitting across the table.”

With The Advocates, you begin to get a clear sense of what he meant, in that the judge was really the viewer at home, rather than an adversary or impartial jurist. On the show, Roger played multiple roles: executive editor and moderator of the show during its first season; then later, as an advocate. I saw some of his multifaceted talent in action while I worked with him on the show during that first season. I took a leave of absence from law practice from 1969-70 to appear in thirteen episodes as a Boston-based advocate on the show, arguing one side or another of the issue which was assigned to me and the producers I worked with.

Over time, The Advocates changed into more of a partisan debate on public questions, often with a regular liberal and conservative advocate, or advocates who were publically identified with a specific issue. While this perhaps made for simpler television, the show may have lost some of Roger’s original mission: to frame public choices as necessarily challenging decisions, with positives and negatives for either course of action, rather than right paths versus wrong ones. This was a preview of his later (and famous) “presently perceived choice,” the idea that something which seems sensible to you might look different to someone on the other side of a dispute.

To learn more about The Advocates, Roger Fisher’s role in it, and some of the lessons the show has for us even after over forty years, you can read my more extensive introduction to the show, The Advocates: a retrospective on an important—and still relevant—innovation in public affairs television, reproduced here on the HNLR web site courtesy of WGBH Educational Foundation, Media Library and Archives, which also includes a link to the WGBH Open Vault website about the show.

The WGBH Open Vault website presents many episodes of The Advocates in their entirety, including a newly added episode in which Roger appeared as an advocate opposite William Kunstler on the subject of civil disobedience to the Vietnam War. This episode was shown by the Program on Negotiation at Harvard Law School at a special presentation on February 28, 2013, in preparation for a special Harvard Negotiation Law Review Symposium on Roger’s legacy held at Harvard Law School on March 1, 2013. The article for WGBH grew out of my introduction to that February 28th presentation. This article includes references to clips from that and several other episodes, and also contains a list of The Advocates shows that were produced, as well as links to those shows which have been made available on the WGBH Open Vault.

While Professor Fisher is no longer with us, we can continue to learn from his example.

Main Article

Related sites, archives or other material relevant to The Advocates, Professor Roger Fisher, or the Author, Professor Lisle Baker

Procedural Justice Beyond Borders: Mediation in Ghana

By Jacqueline Nolan-Haley and James Kwasi Annor-Ohene

Abstract

Ghana enacted comprehensive alternative dispute resolution legislation in 2010 with the specific goals of providing access to justice and promoting domestic and foreign direct investment (The Act).  A significant aspect of the Act was the inclusion of customary arbitration and mediation.  The focus of this Article is on mediation as this is the first time that mediation has been included in a statute in Ghana.  The Act’s definition of mediation reflects an understanding of the mediation process based upon the western values of individual autonomy and party self-determination.  These principles represent a significant departure from the more communal values of customary mediation that has traditionally been practiced in Ghana.  Whether the Act has been successful in achieving its “access to justice” goal is too soon to determine.  However, one yardstick for measuring success is the degree to which parties experience procedural justice or fairness when they participate in the mediation process.  Studies show that procedural justice can foster perceptions of legitimacy and where parties report positive experiences of procedural justice, they are generally satisfied with the process and tend to comply with outcomes.

In this Article, we report on a preliminary procedural justice study that we conducted in Ghana during the summer of 2013. Our findings, based on a limited number of participants, suggest that the mediation provisions in the Act are perceived as legitimate and that the common characteristics of procedural justice in Ghana are consistent with the findings on procedural justice in western countries.  The opportunities to express oneself, to be treated respectfully, and to experience fairness in the process, are as highly valued aspects of mediation in the communitarian, collectivist culture of Ghana as they are reported to be in individualistic western cultures.

CONTINUE READING HERE

Unmasking Masculinity in Negotiation Scholarship

By John Miller

Men and women often experience negotiation differently. In fact, many patriarchal societal inequalities play out during negotiations, particularly when men and women negotiate with each other. Researchers like Linda Babcock, Hannah Riley Bowles, and Sara Laschever, to name just a few, have written extensively about how gendered forces in negotiations act upon women in particular.1 Not only are women held to different standards of behavior in a bargaining scenario, but women are also subject to implicit biases attached to their initiation of negotiations in the first place.2 These gendered attitudes also pervade leadership assessments, dictating that women in command must exhibit some traditionally masculine traits while still maintaining social-expected femininity.3

Once we acknowledge that gender roles are socially constructed, and not biologically inherent,4 we begin to see how women and men are trained to play certain gender roles, deviations from which are met with discomfort and even scorn.5 Invariably, many scholars’ conclusions suggest numerous ways to mitigate the difference between men and women in negotiation outcomes, affording women greater success in negotiations and the benefits that follow.

This line of analysis, and its subsequent conclusions, actually reflects a problem with much gender-based research. In much of the literature on negotiation and gender, maleness is treated as a measuring stick to compare to women’s progress in various positive outcomes. The problems are framed in comparison to male performance, and the solutions are dictated in terms of what women can do,6 or when they mention men at all, in terms of what men should do differently to help women.7 The advice is certainly useful, but it carries the assumption that masculinity is a unitary constant. Gendered research into masculinity has exposed not one, but a multitude of masculinities, acting upon men in ways unaccounted for in gendered negotiation research.8 And many of these masculinities are dominated and subservient to the same organizational patriarchy that feminism seeks to topple.9  The problem I seek to identify is a general disregard of men as anything more than a monolithic control group, considering the vast sociological and psychological evidence to the contrary.

This article will begin by explaining the anti-essentialist notion of multiple masculinity theory as it is currently understood, demonstrating the complexity missing from arguments that assume all men to operate under and happily conform to one definition of masculinity. I will then identify various issues of masculinity in negotiation scholarship that are either unexplored or underexplored, and develop why these issues are so important in the on-going conversation about negotiation and gender. The aim is not to belie the underperformance of women in negotiations, but instead to demonstrate how the dialogue must change to account for a more comprehensive view of masculinity and the forces it exerts upon both men and women in negotiation.

 

John Miller is a second year JD student at Harvard Law School. 

 

1 See generally Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus. Rev., October 2003, http://hbr.org/2003/10/nice-girls-dont-ask/; Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

2 Hannah Riley Bowles et al., Social Incentives for Gender Differences in the Propensity to Initiate Negotiations: Sometimes It Does Hurt to Ask, 103 Org. Behav. and Hum. Decision Processes 84, 85 (2007)

3 Id.

4 See Ann C. McGinley, Creating Masculine Identities: Bullying and Harassment “Because of Sex”, 79 U. Colo. L. Rev. 1151, 1161-62 (2008)

5 Bowles, supra note 2, at 86

6 See Bowles, supra Note 2; Linda Babcock et al., Nice Girls Don’t Ask, Harv. Bus.Rev., October 2003, http://hbr.org/2003/10/nice-girls-dont-ask/

7 Andrew Cohn, Women and Negotiation: Why and How Men Should Come to the Bargaining Table, 1 Oxford Leadership J. 1, 2 (2010)

8 David S. Cohen, Keeping Men “Men” and Women Down: Sex Segregation, Anti-Essentialism, and Masculinity, 332 Harv. J. L. & Gender 509, 521 (2010)

9 Id. at 522

How Obama Can Be “Tuff” in Syria

By Robert C. Bordone and Alonzo Emery

We haven’t been able to shake the image: 20 year-old Michael Brandon Hill enters a packed elementary school in Decatur, Georgia armed with an AK-47 assault rifle.  He seems determined to make the start of the school year a day of grief, tragedy and death. Amazingly, the school bookkeeper, Antoinette Tuff intervenes by using listening and dialogue to negotiate the terms of peaceful resolution.  The incident all captured during a taped 911 phone call.

When President Obama phoned Tuff to applaud her fortitude on that August day, Tuff alluded to the President’s example, saying to him, “I learned from the best.”

The President could actually learn a great deal from Tuff, especially as he decides how to respond to the Syrian crisis. Although the local community context Tuff found herself in and the geopolitical one faced by the President differ in important ways, essential lessons from Tuff’s harrowing experience can inform how we face this conflict and the inevitable conflicts we encounter in the future.

Build affiliation. At first glance, Hill and Tuff shared little in common. Barriers of race, gender, age, and life station divided them, not to mention the gulf separating a heavily armed man from a defenseless school employee. Still Tuff found a way to connect to Hill’s humanity. Instead of shutting Hill out by building a wall around herself, she did the opposite, saying, “Don’t feel bad, baby.  My husband just left me after 33 years. I am sitting with you and talking with you about it.  I’ve got a son that’s multiple disabled.”

In the face of conflict – and especially in the face of a gunman poised to kill – we understandably forget the humanity of our counterpart and what we might share in common.  At the height of her terror, Tuff built affiliation with her captor, “My mother was a Hill”, that opened Michael Hill to exploring solutions other than gunfire and mass murder.  Although Hill was the proximate cause of the problem that day, Tuff engaged him as a joint problem solver.

Despite the deafening beat of war drums, President Obama might consider how best to listen carefully through the din and use what he learns to build the type of affiliation that can lead to a more peaceful solution. The President can look to ongoing talks with world leaders as opportunities to build affiliation with those who can use their leverage with the ruling Syrian regime.  By avoiding ultimatums and fiery rhetoric, the President can learn from Antoinette Tuff by framing his engagement with other leaders as an invitation to bringing a shared problem to an acceptable end.

Build them a step, build them a golden bridge. There is a common saying in China: “For people to descend from the stage, you must provide a step.”  The allusion is to the stage of conflict and the provision of an exit for its protagonists. Western experts in conflict resolution offer similar advice, using the evocative image of building a golden bridge for your negotiation counterpart to cross to the same side. Without providing the step, without the bridge, parties become entrenched and conflict escalates.

In Decatur, Antoinette Tuff told Hill with astonishing composure: “We are not going to hate you, baby…it is a good thing you are giving up.” Thus, Hill could step down from the heights of conflict and cross a bridge to something that seemed crucially different than failure.

The people of Syria do not enjoy the luxury of time. If there is to be an alternative to direct military conflict, the global community must act quickly to find a step from which Assad and his supporters can descend and a bridge toward something worth saying ‘yes’ to.  As Tuff’s example suggests, this is not an exercise in weakness or a bridge to impunity; rather it is a strategic move to accomplish a limited but critical goal: the end of civilian casualties. In the end, both Hill and Assad must answer for their crimes.

As the U.S. weighs its options in Syria and continues to build strategy to persuade world leaders, President Obama can “learn from the best” in Antoinette Tuff by extracting two valuable lessons from her heroism: Create a sense of affiliation with those influencing the outcome. Build a golden bridge that allows the other to end conflict swiftly. Lessons learned from Tuff might fare as well in Damascus as they did in Decatur.

 

Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law and the Director of the Harvard Negotiation and Mediation Clinical Program at Harvard Law School. Alonzo Emery is a Lecturer on Law and Clinical Instructor at Harvard Law School.

 

About HNLR

Negotiation, not adjudication, resolves most legal conflicts. However, despite the fact that dispute resolution is central to the practice of law and has become a “hot” topic in legal circles, a gap in the literature persists. “Legal negotiation” — negotiation with lawyers in the middle and legal institutions in the background — has escaped systematic analysis.

The Harvard Negotiation Law Review works to close this gap by providing a forum in which scholars from many disciplines can discuss negotiation as it relates to law and legal institutions. It is aimed specifically at lawyers and legal scholars.

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