Distributive Bargaining and Mediation - Literature review Example

Distributive Bargaining and Mediation Introduction Increasing complexity in business sector often gives rise to conflict of interest and dispute. Disputes and conflicts can be resolved in different manners such as negotiation, mediation, litigation and arbitration. Dispute resolution is a process of mitigating interest conflict through fair and peaceful settlement. Generally, aggrieved parties emphasize on resolving disputes without undergoing any kind of trial for saving cost and time. Negotiations can be of many kinds; for instance, a number of researchers stress upon distributive bargaining and integrative bargaining for mitigation of disputes (Raiffa, 1982). Distributive bargaining is generally referred as negotiation of win and loses between parties where both the parties attempt to maximize their profit and minimize personal losses. On the other hand, integrative bargaining focuses on developing a win-win situation for both the parties. It is also referred to as interest based bargaining as in this negotiation parties collaborate to determine a solution that generate mutual satisfaction. In certain specific situations, other measures of negotiation such as mediation are implemented as well. Mediation is one of the well-known processes of alternative dispute resolution where dispute resolution is facilitated through skilled leadership of a third party unbiased to the situation (Raiffa, 1982). In this paper, mediation and distributive bargaining have been compared and analyzed as measures of negotiation. The paper also highlights benefits and drawbacks of both the measures in context of conflict resolution and discusses situations where each of these methods is most suitable. Comparing and contrasting distributive bargaining and mediation It was gathered that a number of scholarly articles on dispute resolution indicates that primarily two kinds of negotiation strategies are adopted in most cases, namely, distributive bargaining and integrative bargaining. The philosophy of distributive bargaining focuses on value claiming and refrains from dividing the pie. There has been a mention of pie in this paper as the concept is often compared to division of pie by most researchers. The distributive bargaining is implied in terms of zero sum approach of economic theory because the process of dividing outcomes of an event under this method of negotiation is mutually exhaustive (Amanatullah, Morris & Curhan, 2008). One of the important aspects of distributive bargaining is that negative correlation is exhibited among interests of aggrieved parties while gain of one party is directly proportional to loss of another. Authors such as Fisher, Patton and Ury (1991) pointed out in their research that distributive bargaining is a comparatively narrow concept and inferior to the integrative bargaining. An ideal example in this respect is that if certain resources are not availed by person A, then conveniently it will be passed to person B which validates the concept of zero-sum. In recent years, mediation has gained sufficient attention among various negotiation measures adopted in conflict management. However, it was ascertained that the availability of data on this subject is comparatively scarce with respect to other negotiation process that has been discussed earlier. Mediation is one of the important forms of alternative dispute resolution where an unbiased third party assists in resolving conflicts between two parties. However, the mediator neither forces agreement on the parties nor make decision on a party’s behalf. Donohue is considered as one of the important proponents of the mediation theory who suggested that involvement of mediation in the negotiation process that helps in preventing a number of complications. As there is a lack of sufficient information regarding functioning of mediation process, often the same result in presentation of conflictive thoughts among researchers. A number of researchers argued that mediation process can be classified as an evaluative mediation and facilitative mediation, where the former process stimulates the parties to settle based on assessment of merits of the offerings while the former continuously communicates perspectives of both the parties to each other so as to narrow down their differences and reach common understanding and settle (Wall, 1981). Advantages and disadvantages of mediation There are several advantages of the mediation process. The primary reason for selecting mediation over litigation is that it is comparatively inexpensive and less time consuming. Mediation is considered as a relatively swift measure of resolving disputes as it is not driven by congested schedule of court session and can be scheduled at a convenient time with mutual consent. Mediation deals issues in a creative and positive manner while maintaining the sensitiveness of the case. The other benefits of mediation that are considered by parties while selecting this measure are confidentiality, satisfaction and it is less intimidating in nature. Unlike litigation, mediation is a simpler procedure where the rule of fairness is applicable in maximum cases. Lastly, settlements that are reached in the process are generally agreeable to both the parties (NPC, 2014; Clarke & Davies, 1991). Despite the above mentioned advantages of mediation, the process is not flawless and it has a number of drawbacks associated with it. Facts suggest that the process of mediation is not always successful in producing a settling outcome that is agreeable to both the parties. Therefore, scope of risk always prevails in this negotiation process. Furthermore, a major flaw in the mediation process is that it lacks the constitutional and procedural security that is generally guaranteed by federal and state courts. The informal structure can act as a benefit or detriment depending upon situation. The other weaknesses of mediation method are absence of legal precedent in the process and lack of a formal discovery process (NPC, 2014; Clarke & Davies, 1991). Advantage and disadvantages of distributive bargaining The process of distributive bargaining is primarily associated with value claiming and resource division especially when the pool of resources is limited in nature. The primary advantage of distributive bargaining is that it focuses on the fixed pie and each party vie for a greater share instead of fair share. In this context, it is worth mentioning that in a number of situations, a party does not always deserve a fair share of the resources. Distributive bargaining is mostly about implementing persuasive and manipulating skills of the negotiator for convincing the other party to give up maximum part of their interest in the resources. Distributive bargaining mainly focuses on the ways to use certain information for strategic advantage. It helps the negotiator discover the resistance point of other party which can be used for developing an advantageous position with respect to the opponent (Thompson, Peterson & Brodt, 1996; Richardson, 2000). The process of distributive bargaining can prove to be a failure when both the parties are extremely stubborn regarding giving up their share in the resources. The process of distributive bargaining can be extremely direct at times and can have negative impact on relationship and mutual interest of parties involved. This method of negotiation may generate negative result if information that is necessary for bargaining is unavailable to the parties involved in the dispute (Fisher, Patton & Ury, 1991). Situations and examples where mediation and distributive bargaining are applicable According to the federal court of Australian government, any case irrespective of its complexity is eligible for mediation. However, case related to corporation law, industrial law, intellectual property rights, consumer law, taxation and human rights can be generally mediated through the federal court (Federal court of Australia, 2014). Mediation is particularly applicable is situations when the aggrieved parties express their willingness to resolve through mediation, when its apparent to the parties that the court may not be able to resolve the dispute, when the parties wish to preserve their personal relationship despite the dispute and when the dispute involve non-monetary factors. An ideal example of mediation can be resolution to neighbourhood disputes regarding fencing and plantation. These issues are generally considered as minor by court but can instigate bitter feelings among individuals (Clarke & Davies, 1991). Distributive bargaining is generally applicable where both the parties are continuous vying for a major share of resources. This method of negotiation is applicable when there is professional relationship between the parties. In context of Australia, distributive bargaining can be observed in organisations that has labour union. This method of negotiation helps in resolving issues between management and labour union (Vo, Padgham & Cavedon, 2007; Walton & McKersie, 1991). Conclusion In this paper, distributive bargaining and mediation were analysed and compared so as to understand their implication in dispute resolution processed. It was observed that mediation is appropriate when both parties are interested in peaceful negotiation and settlement with the help of a third party observant, while distributive bargaining is applied where self interest and personal gain are consider more important over collective gain. The benefits and drawbacks of both the negotiation methods have been discussed and it was ascertained that in a number of situations convergence of mediation and distributive bargaining is necessary so that a win-win situation is created instead of zero-sum situation. Especially, in situations where financial arrangement or industrial relation is involved, mediation along with distributive bargaining will help in developing trust among parties causing peaceful settlement. References Amanatullah, E. T., Morris, M. W. & Curhan, J. R. (2008). Negotiators who give too much: unmitigated communion, relational anxieties, and economic costs in distributive and integrative bargaining. Journal of personality and social psychology, 95(3), pp. 723-730. Clarke, G. R. & Davies, I. T. (1991). ADR—Argument for and Against Use of the Mediation Process Particularly in Family and Neighbourhood Disputes. QUT Law Review, 7, 81-96. Federal court of Australia. (2014). Mediation. Retrieved from http://www.fedcourt.gov.au/case-management-services/ADR/mediation. Fisher, R., Patton, B. & Ury, W. (1991). Getting to yes: Negotiating agreement without giving in. Boston: Houghton Mifflin Harcourt. NPC. (2014). Advantage and disadvantages of mediation. Retrieved from http://nationalparalegal.edu/public_documents/courseware_asp_files/ADR/MediateHow/AdvantageMediate.asp Raiffa, H. (1982). The art and science of negotiation. Harvard: Harvard University Press. Richardson, J. (2000). A Review of Bargaining for Advantage. Harvard Negotiation Law Review, 5, 399-399. Thompson, L., Peterson, E. & Brodt, S. E. (1996). Team negotiation: An examination of integrative and distributive bargaining. Journal of Personality and Social Psychology, 70(1), 66. Todhunter, L. (2010). Innovation in Enterprise Bargaining: The Queensland Health and Queensland Nurses’ Union Experience. Retrieved from https://www.qnu.org.au/__data/assets/pdf_file/0005/158009/Innovation-in-Enterprise-Bargaining.pdf. Vo, Q. B., Padgham, L. & Cavedon, L. (2007). Negotiating flexible agreements by combining distributive and integrative negotiation. Intelligent Decision Technologies, 1(1), pp. 33-47. Wall, J. A. (1981). Review Section: Mediation an Analysis, Review, and Proposed Research. Journal of Conflict Resolution, 25(1), 157-180. Walton, R. E. & McKersie, R. B. (1991). A behavioral theory of labor negotiations: An analysis of a social interaction system. New York: Cornell University Press. Bibliography Bühring-Uhle, C., Kirchhoff, L. and Scherer, G., 2006. Arbitration and mediation in international business. Netherlands: Kluwer Law International. Cooper, D. M., 2013. The "new advocacy" and the ermergence of lawyer representatives in ADR. Australasian Dispute Resolution Journal, 24, pp. 178-186. Davidson, J. and Wood, C., 2004. A conflict resolution model. Theory into Practice, 43(1), 6-13. Read More