308 The Mediation Process that he would accrue if he reached a negotiated settlement. Th mediator later explained to me that among Sri Lankan Buddhism storing up merit by doing good deeds was seen as desirable be cause it enabled one to get off the wheel of life and reach nirvana more rapidly. These examples illustrate how important it is for mediators to explore with parties the specific standards and criteria they are using when determining the acceptability of an agreement. Understanding their conceptual framework may help the intervenor work successfully within their worldview, interpret one party's logic and rationale to others, and ultimately facilitate agreement. ~*>'*\ ffoe Chapter Thirteen Conducting Final Bargaining and Reaching Closure Final bargaining involves activities initiated by both the parties and the mediator late in negotiations to reduce the scope and number of substantive and procedural differences between negotiators; move toward a formal agreement and terminate conflict; and assist disputants to reach the greatest psychological closure regarding the people involved, issues in question, and the substantive terms of the settlement. FINAL BARGAINING ON SUBSTANTIVE AND PROCEDURAL ISSUES Gulliver (1979, pp. 161-162) identifies four situations in which negotiators find themselves in the final bargaining stage: 1. The bargaining range may have been so narrow that tne advantages to be gained from bargaining have become small, even trifling, given the agreement already achieved.. .. What remains to be done is a clearing up of minor details and make a joint commitment to the culminating outcome. 2. The bargaining range may have been narrowed, or the bar-gaming formula may have already established a number of agreements in principle, but the details of terms need to be worked out. 3. In a third bargaining situation, although something like a viable bargaining range has been discovered, albeit roughly and with unclear limits, considerable differences may remain between the parties. In principle, any point within the range is mutually 310 The Mediation Process preferable to no agreement, yet considerable gain or loss of advantage can still result from final agreement on a particular point. 4. No viable range has been discovered, and it may well not exist. Here, although the parties are deliberately working toward agreement and are making "real" proposals for an outcome, their preference sets and expectations are still not altogether clear. Parties who find themselves in the first situation usually reach agreement easily. Their relationship is cordial, the acceptable options are clear, and the procedural route to completion of the negotiations is uncomplicated and direct. The remaining situations, however, are more problematic for negotiations, and a mediator's intervention may be needed to prevent deadlock. I will focus the discussion in this chapter on procedures negotiators and mediators can use to accomplish final bargaining in the last three situations. There appear to be four major patterns of moves negotiators use during the final stage of bargaining: (1) incremental convergence (Gulliver, 1979; Walton and McKersie, 1965); (2) a delay of agreement and then a final leap to a package setdement (Zartman and Berman, 1982); (3) development of a consensual formula; and (4) procedural means to reach agreements (Fisher, 1978; Zartman and Berman, 1982). I will first explore these approaches to final settlement and then examine the crucial factor of timing to see how the mediator uses deadlines to bring negotiations to a conclusion. INCREMENTAL CONVERGENCE In incremental convergence, the parties make gradual concessions within a positive bargaining range until they reach a mutually satisfactory compromise position. Parties may isolate concessions to offers on a single issue or link issues to balance losses and benefits. If the disputants have adhered to positional bargaining, the mediator's main task is to assist them in making offers that will be acceptable to the other party, and to prevent them from prematurely committing to a position that will be difficult to back awa> from later in negotiations. ^ \ Qffm are me specific terms of a position that a party presen * \as a possible solution to an issue. Especially in positional barga1" Jing, an offer frequendy implies some form of concession or tra Conducting Final Bargaining and Reaching Closure 311 a party is willing to make in exchange for an acceptable reciprocal offer or agreement. Parties engaged in positional bargaining face several problems that may inhibit them from making offers. Reluctance to Overconcede or Reveal Bargaining Positions At this point in negotiations, parties may be reluctant to make offers that go beyond their opening positions, even if they have discovered an opponent's settlement range. They do not want to concede more than is necessary, nor do they want to indicate the bargaining positions within their own settlement range. This situation can result in endless avoidance behavior and a lack of commitment to a specific proposal. In this situation, mediators should assist parties in developing tentative or hypothetical offers that can be used to test for potential agreement while not formally committing a party to a specific solution. A negotiator, the mediator, or both can design tentative or probing offers. Such offers can vary in degree of specificity, resources exchanged, time of performance, and implications if the offer is accepted in a timely manner. This allows a party more flexibility in exploring the setdement range without prematurely committing to a position. The mediator might say, "I'd like to try out a possible setdement option. If you find it to be reasonable, I will explore its acceptability with the other party." Tentative offers can often be explored with the other party by having the mediator SimiiJe between the parties, testing areas of agreement witnout formally committing a party to a specific solution. Fear of Being Perceived as Weak A second factor that inhibits paráes in initiating offers is the fear of bemg perceived as weak (Rubin and Brown, 1975). People in con-»ct often do not want others to see them being "forced" to make a concession. They fear that concession making will become—or be perceived to be—a pattern, and that the opponent will hold °«t on later issues expecting similar compliant behavior. There is ^dence in pure game theory that concession making may be per-cenved as a sign of weakness (Deutsch, 1974); however, in actual 312 The Mediation Process Conducting Final Bargaining and Reaching Closure 313 negotiations in which there is personal interaction, making the first offer or concession can be turned into an asset rather than a lia_ bility. The classic case is Anwar Sadat's initiative in proposing t0 Menachem Begin that they begin discussions on a Middle East peace plan. Sadat's proposal to travel to Israel to talk was a potent first offer, and a definite sign of strength. Mediators can aid a party in making a first offer by helping to frame the offer in such a way that the concession becomes an initiative of strength, not weakness. Through framing, the party can make explicit the fact that he or she is making an offer or concession to demonstrate good faith, show a willingness to take the other's needs into consideration, encourage the other party or parties to make similar moves, or establish a trading arrangement in which a concession is made on one issue in exchange for a concession on another. The mediator may coach and assist the pam in framing the offer so that the other party will perceive it favorably. The mediator may also prime the recipient so that the offer will be accepted or reciprocated. Negative Transference Parties often reject an offer not because of its substantive content but because of their attitude toward its initiator. The mediator can help negotiators avoid this pitfall by proposing one party's ideas to the other as if they were his or her own. This eliminates the possibility that the other party will perceive offers as "partial, biased, or tainted rpore because of their source thar* because nf their substantive content" (Young, 1972). Fear of Rejection and Impasse Parties are often discouraged from making offers because they fca» rejection and stalemate. They may prefer to continue discussion rather than reach an impasse. Mediators can assist parties in overcoming this obstacle by testing the ideas of the parties in Priv'^e and bringing to the joint session only those points on which the parties can agree. The mediator can encourage the parties to maK the offers, or make the offers that they agree to for them. It is ge°' erall}' preferable for the parties themselves to make the offers as this increases their commitment to proposals and maintains the mediator's impartiality toward the substance of the negotiations. public Pressure on Negotiators In cases in which negotiators represent a constituency, the parties mav be constrained from making public offers because of possible personal repercussions from unpopular concessions. This is often the case in labor-management negotiations when a union team feels constrained by the union membership from making an offer that the team may feel is reasonable and acceptable. Here, the mediator can make a proposal and become a negotiator's scapegoat. Negotiators can agree to the concession and later claim that they agreed because the mediator requested concurrence, not because they initiated it or the other party forced them to agree. Closely related to the scapegoat function of the mediator is the role of mediator or coalition former. The mediator's presence and his or her suggestions of offers can cause the disputants to reevaluate their relationship to each other and the issues that divide them: "One possibility is, of course, that the two original contestants both become antagonistic towards the third person and decide to agree so as not to let the newcomer influence the settlement" (Aubert, 1963, p. 35). The mediator can induce this situation by proposing one or more solutions that are more extreme than either party is willing to accept. In this situation, they may be forced into a coali- I üon to moderate the ^ss of Face Another block to parties initiating offers is the issue of losing or saving face (Brown, 1977). Mediators can assist parties in making new offers by giving them rationalizations for shifts in positions and by refraining the situation so that an offer does not result in a °ss of dignity. This strategy also aids parties in abandoning untenable positions. The six blocks described here can all be impediments to initiat-g offers that can lead to an incremental convergence of positions 314 The Mediation Process Conducting Final Bargaining and Reaching Closure 315 or selection of an interest-based settlement option. Appropriate diator intervention, however, can minimize the negative effects ease the decision-making process. and LEAP TO AGREEMENT The leap-to-agreement approach to final bargaining is characterize by a strategy of opening with a high demand, offering few conces-sions, and then making a final leap toward a package that meets the negotiators' demands toward the end of negotiations (Zartmanand Berman, 1982). Leaps to agreement usually occur when (1) neg<> tiators consciously pursue a hard-line strategy to educate an oppo-nent about a principle; (2) negotiators want to use deadline pressure to force an agreement; or (3) all options are equally acceptable (or unacceptable) and no one proposal has superior merit. The leap-to-agreement process of negotiation is often characterized by a package deal or "yes-able proposal" that attempts to incorporate the needs of all parties into one acceptable linked package (Fisher, 1969). Advantages to this approach are that: 9 It prevents incremental concession making that may result in expectations of more concessions • It allows a party to make a point about the strength of his or her commitment to an issue or principle • By turning the task of developing a comprehensive solution over to one party, it attempts to eliminate part of the difficult task of jointly drafting an agreement ° it demonstrates that acceptable trade-offs are possible 0 It may incline a party toward agreement when a deadline is close and there is no time to develop a counterproposal This approach does, however, have some drawbacks. Intransigence on a position and lack of progress early in a negotiation may cause the other party to adhere to its initial position and may also foster increasing hostility over any procedure used to resolve the dispute rather than over the issues themselves. Presenting a package late in negotiations may also cause problems because the opposing party may believe that he or she has not had an opportunity to p*r in formulating the terms for setdement. Rejection thus **a]'s substantive content. tfripate^ase disagree on others. • Agreement to disagree. Parties mutually agree to disagree. The contested issue is not dropped but is no longer pursued at this time. Mutual dropping of issues. Parties implicitly or explicitly agree to drop an issue in dispute. Nonbinding decision. Parties make a nonbinding request of each other for cooperation, but compliance is not promised or guaranteed. Issue avoidance. One or more parties refuse to join others in negotiating a solution to an issue. Development of multiple choices that are referred to a third-party decision maker. Parties turn to a judge or arbiter for a decision between two or more settlement options that they have generated. Development of a list of interests or objective criteria that are referred to third-party decision maker. Parties refer contested interests to a judge or arbiter who is asked to use parties' individual or joint interests or criteria to formulate a decision. Decision referred to a third-party decision maker. Parties cannot decide, and they defer the decision to a third part)- fcr a binding or nonbinding decision. Impasse or stalemate. Parties cannot decide, and negotiations stall or break down. Neither party has the power to force the issue in his or her favor or to develop a mutually acceptable solution. Continued negotiations. Parties cannot agree, so they do agree to continue negotiating. Shift to another approach of conflict resolution. The parties are unable to reach an acceptable negotiated settlement and move to another approach—voting, nonviolent action, violence, and so n—to resolve their differences. Conducting Final Bargaining and Reaching Closure DEADLINES 323 is a critical component in final bargaining and settlement. (1969, p. 13) notes, "If it did not matter when the parties H^reed it would not matter whether they agreed at all." Time is ^^fh an important motivational factor for negotiators and a vari-">' ye tfjat helps determine how well their interests will be met. In final bargaining, time may be managed for the purpose of inducing a settlement. The most common form of time management at this stage is the deadline. Deadlines are limits that delineate the period of time in which an agreement must be reached. Deadlines perform an important function in settling a variety of issues. For example, lawyers often settle legal cases in the days or hours before trial date. Much of the impetus for out-of-court settlement comes from the unpredictable outcome of court proceedings and the potential for negative consequences if the parties engage in direct litigation. The deadline of a court date motivates parties to settle. Deadlines play an equally important function in prompting the settlement of labor-management disputes. The eleventh-hour set-dement before a strike deadline is well known. The same dynamics are common in nearly all other types of negotiations. Stevens (1963, p. 200) argues: "An approaching deadline puts pressure on !■ the parties to state their true positions and thus does much to "I squeeze elements of bluff out of the later steps of negotiation. 1 However, an approaching deadline does much more. It brings pressures to bear which actually change the least favorable terms upon which each party is willing to settle; thus, it operates as a iot te lending to bring about conditions accessary for agreement." An understanding of deadlines and how they can be used is an invaluable tool for negotiators and mediators. It is beneficial to discuss several characteristics and variables of deadlines that affect their utility in negotiations. Internally and Externally Established Deadlines A party can establish his or her own deadline, or outside forces may determine when negotiation ceases. A contract deadline, an ultimatum imposed by an outside agency, and an impending court date are examples of externally imposed constraints. I T j41 1 me mediation process External deadlines are often important to negotiation strategies. Shapiro (1970, p. 44), in referring to negotiations in which one party represents a constituent group, observes that "any settlement made without the pressure of a last minute crisis leaves the negotiators open to attack by the people they represent, who may feel that they could have gotten a more favorable contract if only their negotiators had bluffed the other side right down to the final moment." Coordinated and Uncoordinated Deadlines Deadlines can be symmetrical or asymmetrical in that the parties may have either the same time limits or different ones. For some parties, a delay in decision making may result in increased benefits, whereas for others a rapid decision may be essential (Lake, 1980). Actual and Artificial Deadlines Parties may be constrained by deadlines that correspond to particular events beyond which they have little control, or they may be influenced by artificial time constraints that are almost arbitrarily established by one or more parties. An artificial deadline was created during negotiations between environmentalists, industry representatives, and two U.S. governmental agencies over restrictions on oil and gas development on federal lands. The environmentalists stated that if they did not see progress in the talks within six weeks, they would cease negotiating. They arbitrarily set a deadline in order to encourage industry and government representatives to reach an agreement. Rigid and Flexible Deadlines The rigidity-flexibility variable is closely related to the distinction between actual and artificial deadlines. Although rigid deadlines are usually viewed as the stronger impetus for settlement because they set fixed time boundaries that the parties dare not overstep, more flexible deadlines, at least at the eleventh hour, may allow he parties necessary latitude to reach a decision. Parties often Conducting Final Bargaining and Reaching Closure 325 need additional time to reconsider a last-minute proposal or to jrtin constituent or bureaucratic approval to reach a final accord. [Vlutually determined extensions of deadlines may be a prerequisite for a settlement. Deadlines with and Without Consequences Deadlines promote settlements primarily because they usually imply negative consequences if the time limit is transgressed. Possible consequences include termination of negotiations, stalemate, loss of gains already achieved, withdrawal of an offer, acceptance of another party's offer, a court suit, a strike, and other undesirable outcomes. Although a deadline does not have to imply dire consequences such as threat or actual imposition of negative sanctions, it must present the possibility of a worse option than if settlement were reached. Negotiators and mediators often manipulate the explicit or implicit consequences of not settling before a deadline because known or unknown consequences may incline another party toward agreement. Explicit or Vague Deadlines Deadlines may be explicidy defined, or they may remain vague. The appropriate strategy depends on the particular negotiation. Explicit deadlines create a definite point at which settlement must be reached. Though involving a positive benefit in creating motivation for settlement, explicit deadlines may also create resistance because of a perceived threat of negative consequences; they may promote unwise decisions because there is not enough time to consider all options; and they may encourage an excessive willingness to settle at the sacrifice of an important principle. Negotiators usually argue for explicit deadlines only when all parties will bear the negative consequences of a failure to reach agreement within the prescribed time. An example of this situation is a strike in which both labor and management stand to lose if a new contract is not negotiated. Nonexplicit deadlines, on the other hand, may be used to imply that the negotiator is willing to talk as long as necessary to reach an acceptable settlement. Such deadlines can be used to the 326 The Mediation Process advantage of negotiators who know that an opponent is Und pressure to settle by a certain time. The appearance of unlimit^ time for discussion may motivate an opponent to settle early ' order to curtail rising costs that result from delay. However, even if time is an important factor for negotiators, a party may gajn more in the end by concealing his or her deadline. Cohen (1980) a business negotiator, describes a case in which he lost thousands of dollars because he discussed his time constraints too openly and his opponent discovered his settlement deadline. His opponent was willing to talk for a longer period of time than was available to Cohen, and thus forced him to make concessions and reach an agreement just before his deadline—the departure of his plane. MEDIATORS AND DEADLINE MANAGEMENT Mediators can significandy assist negotiators in managing deadlines by making them aware of internal or external deadlines or assisting them in setting artificial deadlines when none exist When appropriate, mediators may also make rigid deadlines more flexible, assist the parties in avoiding negative moves related to time, and enhance the usefulness of deadlines. Making Parties Aware of Deadlines Parties are often not aware of the existence or consequences of deadlines. This is especially the case when the deadlines are externally imposed or implicitly assumed. In final bargaining, mediators often remind negotiators that a deadline is approaching and that positive benefits may he lost or negative consequences in curred from a failure to reach an agreement. This function should not be construed to mean that the mediator should reveal a hidden deadline that is crucial for another party to meet his or her interests. Mediators should take great care not to reveal confidential information about a party's time constraints lest they unduly in- _ fluence the settlement and create a mediator-induced imbalance ~ in the power relationship between the parties. The mediator |hould, however, bring to the consciousness of the negotiators the ^ ~ ^xplicit time parameters that affect final bargaining. CoNnucmNC Final Bargaining and Reaching Cix>sure 327 fisting Parties in Establishing a Deadline presence of a deadline often enhances a negotiation's OUt- e Parties who have the capacity to reward or punish other dis-~ ^utants for their performance with respect to time parameters can P ate deadlines. They can also be established by external con-'tituencies—bureaucratic authorities or collectives of interested 5 ties__or by external events. Finally, the mediator's moves can create deadlines. I will examine each of these means of defining time boundaries for negotiation and the mediator's role in influencing them. The mediator, if he or she deems it advisable or necessary, may encourage one or more parties in a dispute to establish a deadline. This move may be made in caucus or in joint session and may be developed unilaterally or multilaterally. There are some situations in which it is appropriate for the mediator to suggest that only one party set a deadline, whereas in others a cooperatively established time limit may be necessary to motivate all disputants to reach agreement. However, a mediator's suggestion in a caucus that only one party set a deadline may be seen as undue manipulation of the negotiation process and may represent a loss of neutrality; it may also carry the risk of exposure in joint session. Mediator advice to only one party should be taken with great care. If a joindy established deadline is desirable, the mediator can as-U sist the parties in deciding the criteria to be used in determining the |:r deadline. Relevant factors may include time needed to learn about or study the issue; time for ratification of an agreement by a con-, stituency; availability of necessary data; and structural, constraints such as rr»urt dates, business schedules, and even changes of aeasnju. Persons or events external to negotiations may also establish deadlines. Mediators often help parties negotiate with superiors or constituencies not directly involved in the mediation regarding the establishment of time parameters. However, such externally imposed boundaries are often beyond the direct control of negotiators but may be needed to motivate other parties to settle. Although mediators rarely control external events that impose deadlines on negotiations, they can translate the consequences of these events to the parties to encourage them to settle within an 4 ■ m iTicuiAl 1UN ľKOCESS agreed period of time. For example, if economic forces all<>v offer to be made for only a limited period, the mediator mav ^ form the parties of this fact. Raising awareness ahout an immin court date that cannot be changed is another means of deadľ ' leverage. 'ne The mediator can also create his or her own deadline if SUc^ a move appears to be the only means of settlement. This can b done in several ways. First, the mediator can make all parties aware that a settlement is possible and that he or she thinks it can be accomplished within a specific period of time. The mediator can request that parties reach agreement within these time parameters Deadlines imposed by the mediator may encourage the parties to negotiate more expeditiously; for example, some commercial mediators structure a limited number of sessions within which the parties must agree or cease mediation. Second, the mediator can announce that he or she will make a public statement after a certain date that the parties are not negotiating in a timely and serious manner. Third, a mediator may threaten to leave the negotiations at a certain time unless the parties agree to honor a deadline (Kolb, 1983). This threat creates a functional deadline to which the parties must respond if they want to retain the mediator's services. Mediators can impose deadlines on parties only if (1) the mediator's threat is credible, (2) the parties are willing to agree to the mediator's request or demand, and (3) the services of the mediator are genuinely needed or desired. The mediator's expendability or his or her failure to carry out a threat may lead to either a loss of credibility or the mediator's departure. Lack of a deadline may not be the problem in a dispute. Deadlines thc—ise'ves can cause impasse. Parties may believe they face a rigid deadline, and the lack of adequate time to negotiate an acceptable agreement may create a deadlock. The mediator's task in this situation is to create a more flexible time frame, which can be accomplished by several methods. First, the mediator may find ways to actually extend the time available for negotiation. Specific procedural agreements may be roposed to postpone the deadline so that parties have more time make a decision. A suggestion to this effect by the mediator ther than by one of the parties often makes the proposal more Conducting Final Bargaining and Reaching Closure 329 K ble to the disputants and also avoids the appearance that if P^^eadline is extended one party will make a concession. Another r'frVator tactic, which is often used in labor negotiations, is to "stop ^^jock." In tn's maneuver, the mediator obtains agreement to *fke^nue negotiations and to temporarily ignore the passage of time the consequences of exceeding the deadline. Negotiation is extended without publicly disavowing that a deadline exists. This ap-roach works as long as progress toward agreement is being made. If not, a party may unilaterally terminate negotiations after the deadline has passed and thus incur the consequences of deadlocked negotiations. A third strategy mediators can use to create more flexibility in deadlines is to delay the time or date by which a specific component of a decision is to be made or is to go into effect. This allows the parties more time to work out controversial details of a particular problem and still reach general agreement. Avoiding Deadline Dangers There are several dangerous but common moves that negotiators may make in conjunction with deadlines. Among them are exposure of another party's deadline, games of "chicken," threats of dire consequences if agreement is not reached before the deadline, unrealistically quick agreements because of false momentum toward the deadline, and manipulation of embarrassment to force an agreement. Mediators can help parties avoid pitfalls in each of these situations. Chicken is a strategy in which each party delays making concessions until the deadline is imminent. The tension of intransigence will supposedly test another negotiator's will to the extent that he or she will give up and make concessions rather than risk deadlock or negative costs if the deadline passes. Unfortunately, no party may be willing to break the cycle of resistance, and then all parries are forced to carry out threats and endure consequences tr»at no one wanted. Mediators may help parties avoid playing chicken with deadlines by (1) publicly labeling the strategy, (2) privately working with each party to assess the costs of pursuing such a tactic, and (3) figuring out ways that parties can abandon extreme positions and make offers that will allow them to maintain tfleir dignity. j ju iwe Mediation Process Threats made close to deadlines seem to be especially " P.artlfS exPerience intransigence from other negotiate0* ,--------------— "'"Sc parties f.u making threats and encourage them to make positive offers duce agreement TKU le v.,-.*v. - ~---------• t0'- s ri: -------, —^v.o Hiiuestoiearl unrealistic and unimplementable agreements. Parties beg process of aereeincr anH hpmmo . o a duce agreement This is both a more constructive and a i t0 * tactic. a less risk, !?,?„?reSenJCe °f * d?adUne occasiona,'y forces parties to „ process of agreeing and become so involved in the exciten^8' dvnamir« nf cottion.o„f fi__» ..1____/• . '"entí and 0--------------v.. wcgouators a""! impasse is looming. Generally, mediators discourage parties f makinC threat* anrl pnrni.ro™ »u-— *----* -rs less to. be. _ ^ -------------i«« me cxcuerr dynamics of settlement that they formulate impracticable agree ments. When a mediator recognizes this pattern, he or she should temper the enthusiasm of the disputants by using reality testino asking questions that raise doubts about the viability of an option or setdement, encouraging the parties to seek more information or physically separating parties into caucuses so that they can more realistically assess the settlement without the stress of the presence of other negotiators. Kheel, a labor mediator, has used this delaying tactic both to avoid untenable agreements and to psychologically encourage settlement (Shapiro, 1970). Kheel separates parties, assuring them that they are "not ready to settle," until they virtually demand to return to joint session to make an agreement. After the delay, in which the real merits of the settlement are analyzed, the parties are ready to make a solid and realistic agreement. Parties are often embarrassed if they ask to delay settlement until they can be more certain of a proposal's merits. Other negotiators can manipulate such embarrassment to force an untimely agreement. Mediators can legitimize delay and prevent manipulation of embarrassment by publiclv calling for more time to reasonably consider a proposal. As an impartial intervenor, the mediator may even claim a personal lack of understanding of the settlement in order to delay a decision and give the parties more time to educate the mediator or for deliberation. Enhancing the Usefulness of Deadlines lediators can assist parties in enhancing positive use of deadlines several ways. First, they can help parties to design offers that con-in fading opportunities. They can also create artificial mileposts y which to measure progress before the ultimate deadline is <., jndi'CTino Final Bargaining and Rfaching Closure 331 I. Each milepost marks a certain number of benefits that jponent will receive if he or she settles at that time. The >r the settlement is delayed, the fewer benefits are offered. example of the first strategy occurred at a dinner party I at-gd one winter. Parents of several children attending the func-told them that they had had enough hors d'oeuvres for the but the children wanted more. At a certain point, more but the children waiueu muic. r-----, — e*e,U od needed to heat the room. The children were offered ^^ntion of having more hors d'oeuvres if they would each bring ^one log- They protested, started delaying tactics, and said they really didn't want to go out into the cold and get the wood. One f the guests changed the terms of the bargaining by saying that if (he children did not bring in the wood in five minutes, he would do so; thus the offer of more food would no longer be available. The children decided that the proposed exchange was worthwhile and carried in the wood before the adult could do so. CULTURE, TIME, AND DEADLINES Culture often significantly influences how parties view time, and consequendy deadlines. Generally, people from cultures that see time as a limited commodity and an item to be saved or spent sparingly value efficiency, rapid agreement, and timeliness. Such cultures frequently expect and allocate shorter periods of time for negotiations and often set hard and fast deadlines. Many other cultures see time as an unlimited resource; they believe that problem solving should not be rushed and will occur all in good time. It is not that these cultures do not have deadlines; thí?!r deadlines sre more distant ihnr* b*1 K^lipvahlrO Wpr*» thp snprifir words word-ing, or syntax the problem? Was the difficulty the tone or perceived insincerity of the initiator? Was the kind and degree of emotional expression appropriate for the situation, in that it articulated the right level of regret, remorse, or contrition? Was the timing wrong? Was the apology made too e«rly or too late in the mediation process? If it was a group dispute, was the apology given by the Wong person? If the person giving it is changed, would it be more likely to be accepted? On the basis of a hypothesis for the probable cause of rejection, the mediator may be able to coach either the giver or receiver 538 The Mediation Process of the apology to make it in another way or perhaps hear it djff ently. An intermediary may reframe an apology in different \ • Cr to make it more explicit, remove value-laden language, and frame it to express a more acceptable emotional content. For ^ ample, a disputant has said in a rather frustrated and reluctant tone: "Okay, okay, so I'm sorry for bungling the books, and cans, ing you an accounting nightmare. I've said it over and over again What more do you want? You can't wring water from a stone!" \j though this is an apology, it is not likely to be accepted. The nie diator might reframe it this way: "You are really sorry that the accounting procedures that you used to report the company's income did not accurately reflect its financial position, and that your method and behavior has caused Steven a number of legal, public relations, and personal problems and stress. If you had known what you know today, this wouldn't have happened, and you strongly regret that you have put Steven and the company in this position. At this time, you are not sure what more you can say to indicate how much you regret your actions, and if you knew what to say, you would say it." If the giver of the apology affirms the mediator's restatement, the recipient may be much more likely to accept it than if it was phrased in the earlier manner. The reframed statement is explicit, takes ownership, shows an appropriate level of emotion and contrition, and opens the door for further conversation. Forgiveness, whether in interpersonal, intergroup, or international relations, and whether requested or unilaterally given, goes beyond ownership or acknowledgment. It involves one party absolving another for statements, actions, or situations that occurred in the past. Forgiveness is not social amnesia, in that an offended party forgets what went before. It is a way of acknowledging the past and past harms, and "walling off history," so that the forgiver and the forgiven can move on with their lives (Blake and Mouton, 1984). Forgiveness is often intimately related to reconciliation. However, the two concepts will be discussed seperately because the latter often goes beyond an act of individual forgiveness. Forgiveness ' as been examined by psychologists, sociologists, theologians, oliticians, and a variety of conflict managers. The context for rk on forgiveness has been interpersonal and family, victim-fender, organizational, intergroup, political, ethnic, and inter- Conducting Final Bargaining and Reaching Closure 339 nal relations (Henderson, 1996, 1999; Minow, 1998; Miiller-j^nholz, 1997; Tutu, 1999; Umbreit, 1985, 1994, and 2000). It can volve but is not limited to, forgiveness between divorcing spouses, 'rmei business partners, patients and doctors, victims and of-iders in criminal cases, political rivals, or victims of abuse and tor-jyre in intraethnic conflicts, and victors and vanquished in wars. Forgiveness, even though it may involve apologies, generally moves far beyond them. Forgiveness involves a party in really letting g° °f a confl'ct and the resentment, animosity, or anger that has been held toward others. Forgiveness also often includes recognition of the common humanity of the other party, identifies and strengthens commonality of interests, reconnects former adversaries, establishes or renews relationships, lowers anger and heals grief, contributes to the construction of new positive alliances, and breaks the cycle of conflict (Hunter, 1965; Muller-Fahrenholz, 1997). Forgiveness does not mean or require that there should not be consequences for harmful words or actions in the past. It means a change of feelings by one person or group toward another. The philosopher Jeffrey Murphy explains it this way: "[Because] I have ceased to hate the person who has wronged me it does not follow that I act inconsistently if I still advocate his being forced to pay compensation for the harm he has done or his being forced to undergo punishment for his wrongdoing—that he, in short, gets his just deserts" (Murphy, 1988). But forgiveness does not always require compensation or punishment. Individuals or institutions can forgive a person or group and not require any further negative consequences. At this time, two questions need to be asked about forgiveness anH its relationship to mediation Firsr what role should mediators play in trying to promote forgiveness? Second, if forgiveness is an important or desirable goal, how can intermediaries help parties move toward it? It is clear that achieving substantive and procedural settlement 15 not necessarily dependent upon one or more parties forgiving each other or achieving a high level of psychological closure. People reach negotiated or mediated agreements every day with others whom they do not trust or who have done them harm. They reach these agreements without forgiveness ever entering into the equation. But it is also true that mediators want to help parties II The Mediation Process achieve settlements that are sustainable and do not result in conflict reemerging later or in another form. Intermediaries generally desire to assist parties whenever possible, to mend ^ pair, redefine, or end conflicting relationships in such a man'n*" that the parties retain their emotional balance, self-respect, dignj f and feelings of worth. An even broader concern of third panig may be the desire to improve broader social relationships and s<> ciety by promoting and achieving the deeper resolution of specifi disputes. Many intermediaries see people as being connected in a web of interlocking and interdependent relationships. Successful positive, and comprehensive settlement of a dispute in one area will inevitably have beneficial ramifications or repercussions in others. Conversely, an incomplete setdement, one that does not address psychological closure or perhaps involve forgiveness, nia\ result in a continuation of negative dynamics or behaviors on the part of one or more parties in interactions with others who are noi parties to the current conflict. All of these concerns may lead mediators to consider forgiveness as a valid aspect of mediation. So, how important is it for a mediator to work with parties toward achieving forgiveness as a factor of psychological closure? Mediators differ widely regarding how critical forgiveness or reestablishment of positive social relationships is when seeking and building durable agreements. They also differ regarding whether mediators should work toward these goals at all, and if so, what priority it should take. Intervenors also have different views on the level or depth of intervention they decide to initiate and the magnitude of change they hope the parties will achieve. Some mediators, who practice a more therapeutic or transformational approach to mediation, often have as one cf their primary goals forgiveness and reconciliation between parties. For example, in the early days of court-based mediation between potentially divorcing spouses, some intermediaries wanted to help the partners forgive each other, reconcile, and continue to be married. Other transformational mediators are more concerned with acknowledgment, empowerment, and recognition (Bush and Fol-ger, 1994). I believe there are two guidelines that should be applied when riding how far a mediator should go to encourage or help par" s forgive one another. First, if it appears that forgiveness is the Conducting Final Bargaining and Reaching Closure 341 . or a key, to an acceptable and durable agreement, the ' • tor should discuss with the parties how work on the issues will allow the emergence of this goal. Second, the mediator uld work toward the goal of forgiveness only if the parties de-Ee it "Forgiveness is a power of the victimized, not a right to be IfaJiTied by another [such as a mediator or a government entity *h as a Truth Commission designed to address past violent infractions between parties]. The ability to dispense, but also withhold forgiveness is an ennobling capacity and part of the dignity to be reclaimed by those who survive the wrongdoing" (Minow, 1998, p. 17). Consideration of forgiveness may be raised by the mediator, but he or she can only open the door; the parties must choose to walk through it. Pushing for forgiveness or reconciliation when parties do not desire it violates one of the basic tenets of mediation: that the parties define and set their own goals. So, how can a mediator help explore with parties whether forgiveness is desirable or possible? First, the intermediary can discuss and educate them about desirability, or the need for (or possible value of) forgiveness as an aspect of settling the conflict and moving forward with their lives. Second, the mediator can explore whether there are any conditions that might merit consideration for forgiveness to occur. Forgiveness can, and probably should, occur only when it is merited—that is, there should be one or more good reasons for a person to forgive another. (The obvious exception to this view may be held by adherents of religions that value forgiveness in and of itself, or who believe that forgiveness will transform the wrongdoer as well as the forgiver.) In reviewing conditions for forgiveness, the intermediary ca>n help parties consider whether one or more actions have occurred that would merit a pardon: 6 Acknowledgment and ownership by the perpetrator of the specific wrong that he or she has done, his or her role in what happened, and the negative consequences or harm that has resulted • A direct request for forgiveness, and possibly an explanation for why it is desired • Voluntary statements or acts that help make the aggrieved party psychologically whole ">t mr.llIAIION PROCESS Voluntary and appropriate levels of efforts to materially c<, pensate the aggrieved party for inconvenience, losses, or harm, or acts to make the party whole (restitution) Voluntary self-denial of something that is valuable to the per son asking for forgiveness, as an indication of his or her will ingness to take responsibility for the harm done to the other party Willingness to accept a consequence imposed by the ^ party 7 a6gn tl 9 Tangible demonstrations that the offending party really has changed and will not act in the unacceptable manner again Third, the mediator can note some of the possible benefits that may be gained by asking for and giving forgiveness. For the person requesting forgiveness, the act itself may be liberating. It acknowledges ownership for a wrong that has been done, involves an apology, requests forgiveness, and may also include a verbal or tangible way to right the wrong (such as compensation). Making a request for forgiveness often helps the wrongdoer feel that he or she has done his or her best to right a wrong, and that it is now in the other parties' hands to decide what is to be done. Benefits to those doing the forgiving can be both therapeutic and tangible. Forgiving another person can prevent one from becoming a "bitter or resentful person" (Kushner, 1996). The release of anger, which may result during the process of discussing painful issues and moving toward forgiveness, may also be therapeutic and physiologically beneficial. Parties granting forgiveness may also find some comfort in having told their story of what happened; knowing that the truth is finally out, expressed, and known: and having the pcrpeuaiui hear about and acknowledge the pain that was caused. Forgivers may also find new freedom to move on with their lives, and not remain caught in the past. Fourth, the mediator can explore with the parties individually or together whether conditional or unconditional forgiveness is the goal. Conditional forgiveness means a pardon is contingent on the requesting party saying or doing something prior to a pardon being granted—that is, the forgiving party must receive something ^ri exchange for the absolution. If forgiveness is conditional, the intermediary can help the parties identify what actions or ex- Conducting Final Bargaining and Reaching Closure 3^3 will be necessary to achieve this level of forgiveness. For ie a customer in a small-claims mediation has been in con-Jith the owner of an auto repair shop. The customer claims he was the victim of abusive language and behavior by the 's owner, inconvenienced by the firm keeping his car for a £and not completing the job on time, and charged $200 more the job than it was projected to cost. The owner of the shop has j^en going through some hard times—a declining number of customers, a high turnover of mechanics, and a number of other com-olaints to the consumer protection unit of the district attorney's office. He really wants to keep the customer's business, preserve the good name of his shop, avoid future consumer complaints, and not have to deal with the DA's office ever again. He proposes to drop $200 dollars off the expected bill, agrees to lower the total price for the work to compensate the car owner for lost time, and promises to provide certificates for a free oil change and tune-up in the future—all this in return for forgiveness and an agreement by the customer not to bad-mouth his business. The car owner rejects the offer as being inadequate and says that a substantive deal and forgiveness is only possible after an apology for the abusive language and a promise that the shop owner will try to treat future customers with more respect and contact them if their bill is to be more than $50 dollars over the projected cost for the repairs. The mediator seizes on the apology that is needed regarding the language and the promise of changed behavior, and works in caucus for how these will be stated to the customer. The right statement at the right time leads to a statement of forgiveness. Reconciliation is often a confusing and contradictory term. Reconciliation can mean coming lo ierrm wul. or accepting a less than-desirable situation, as in "I understand what happened and hate it, but now I will just have to reconcile myself to live with the consequences." Reconciliation can also mean a positive change in disputing parties' relationships so that they can interact positively and productively, and with trust and respect in the future. Both forms of reconciliation can be important in achiving psychological closure in mediation. There are some instances where ar> intermediary may have to work with a party to accept and live ^th a less-than-desirable outcome, or acknowledge that what has happened in the past cannot be changed, no matter how hard the 3*1 The Mediation Process party might try. Talking through issues, interests, and percet and feelings of guilt, frustration, or anger, can often help A °ns' reconcile themselves and help them accept their circumsta^1^ Mediators can also help parties discover an acceptable explan ^ or rationale for what has happened that will give them some n ^ of mind. Although not the most desirable psychological outc of a dispute, this form of reconciliation is sometimes the best tha^ can be achieved. It is important to examine reconciliation in the second sense that of changed relationships, in more detail. It should be noted that reconciliation is more of a process than a definable end state. \s Lederach (1997,1999) noted, reconciliation involves an encountr, between conflicting individuals or groups to address the past and share their trauma, grief, and anger, without getting mired in what has occurred before. It is a process of knowing, acknowledging, and validating the experiences and feelings of others. The focused encounter is the first step in the process of reconciliation. In addition to examining and addressing the past, disputants need to develop a positive joint vision for their relationships in the future. This involves envisoning new or redefined relationships, different and more positive forms of and forums for interaction, reciprocal and jointly beneficial exchanges, and development of common and mutually acceptable expectations. Closing the door on old conflict-ridden relationships and opening the door to future positive ones is not easy; it requires parties to carefully balance and reconcile four interrelated components or goals, which operate in tension with each other and upon which reconcilaition is dependent: (1) truth, which requires revelation, transparency, acknowledgment, and clarity of what has hap pened in the past; (2) mercy, which entails "acceptance forgiveness, support, compassion and healing"; (3) justice, which requires "equality, right relationships, making things right, and restitution ; and (4) peace, which is characterized by "harmony, unity, well being, security and respect" (Lederach, 1977, p. 30). Reconciliation requires balancing the needs of conflicting par-ties for the satisfaction of each of these four components, and addressing the inherent contradictions of achieving one at the expense of another. For example, in a dispute between members of dif-rent ethnic groups and races, where the minorty group has un-ergone years of discrimination, the current conflict over equal Conducting Finai. Bargaining and Reaching Closure 345 itv to advance in an organiztion is only the most current gestation of ongoing differences. The minority grievants and majority parties have to value and reconcile tensions between or desired outcomes of truth, mercy, justice, and the desire eace. How much truth and acknowledgment of wrongs do ,r want to come out about the less-than-complementary behav-- of b°tn their side and the other, versus showing mercy and asking f°r suPPort to sPare tne feelings of all concerned and begin relationships anew? How much justice, equality, and restitution do they want, if it comes at the expense of peace, respect, and barroom in ongoing relations or the perpetuation of adversarial relationships? How is telling the truth and achievingjustice related to the long-term goal of showing mercy and achieving peace? Developing practical procedures for addressing and resolving tensions between these four elements of reconciliation is on the cutting edge of dispute resolution practice, and it is critical to helping parties achieve psychological closure. Several authors have developed more elaborate and lengthy processes to begin to address these tensions (Blake and Mouton, 1984; Kelman, 1991; Lederach, 1997; Rothman, 1992, 1997), but our concern here is what a mediator can do in the short period of time that he or she works with disputing parties to begin the process of reconciliation. There are a number of brief intervention strategies that can help promote reconciliation, some of which have already been described. Others include creating: • A safe forum and envrionment where parties feel free to talk about their feelings, views, perceptions, and opinions on what has happened in the pas?, and openly describe the imoact that events have had on them, their friends, colleagues, or identity group members • Opportunities for acknowledgment and demonstrated understanding by other parties that they have accurately heard the experiences, feelings, and impact the conflict has had on others • Mutual ownership of roles and responsibility for what has happened " Time to identify and discuss cross-cutting experiences, interests, activities, relationships, or affiliations that parties share in common 3*ro The Mediation Process • Opportunities to discuss individual and shared successes in reconciling differences that each side is proud of • Positive vision (s) for new relationships and new ways of interacting • Time to identify and discuss what each "side" has done right in their prior relationship, as well as what they have done that is problematic • Opportunities to identify what has happened in the past, or what is currendy happening, that gets in the way or blocks achieving the positive joint vision(s) • Confidence-building statements, actions, or measures that indicate that the current negative situation can and will change • Group social activities that create opportunities for positive interactions between contending parties and that minimize possibilities of negative encounters • Common tasks, the completion of which requires cooperation Many of these activities can be or are incorporated into stages of the mediation processes. Others may require more structured or extended time to execute but may well contribute substantially to the process of reconciliation. CULTURAL APPROACHES Diverse cultures have differences about what constitutes psychological closure, the degree to which it is desirable or needed at the conclusion of a conflict resolution initiative, and how to achieve it. Different kinds of conflicts and relationships between disputants too may require more or less psychological closure For example in many legal cultures and lawsuits, lawyers place litde or no value on psychological closure; they focus almost exclusively on procedural fairness and mutually acceptable substantive settlements. For other cultures, such as in a village society—especially where disputing parties have to continue to interact, live, or work together-psychological closure may be critical for those involved in a conflict. Some general cultural and situational considerations can help intermediaries decide how important psychological closure is likely to be for disputants. If certain conditions exist, more emphasis may eed to be placed on psychological closure: Conducting Final Bargaining and Reaching CloslRE 347 • if the parties have no choice but to continue to interact or and there is a low likelihood that they can be permanendy rated ^ jn a traditional family, marriage, or village; inmates • orison; in workplaces where there is not an opportunity to transfer or leave the job; or ex-spouses who may need to continue to cogent minor children for a number of years, and so on) • If the culture of the disputants is more collectively oriented than individually oriented (as in many Asian, African, Latin American, and indigenous societies and communities) • If the harmony of the group and smooth interpersonal relationships take precedence over individual needs or interests (as in manv Asian cultures or church communities of believers) • If the culture of the parties or the parties themselves inher-entlv value forgiveness or reconciliation (as with followers of some religions) If one or more of these conditions are present, how can a mediator respond in a culturally sensitive or appropriate way? To this question there are no easy answers. A first step is to talk with the parties about how psychological closure happens in their cultures. Getting disputants to tell stories of how others, or they themselves, have been able to let go of a conflict can point the way to both individual and cultural paths of reconciliation. Another approach is for mediators to tell stories (real ones or fables) that illustrate psychological closure, and use them to engage parties in dialogue about how they might begin to move in this direction.