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Archive for the ‘Daily negotiations’ Category

Back again after too long a gap . . .

This blog is the first in what I hope will be a series of short observations on aspects of culture and dispute resolution. I’m calling it ‘rules of engagement’ as it seems to me that, at the risk of some oversimplification, the plethora of information about cultural difference and dispute resolution ends up leading me to this one key question: what are the terms on which, and the norms by which, people engage in the process and tasks of dispute resolution. I’ll come back in a later post to some of the factors in this Asian region that also prompt this reflection, especially to the extent that there may be norms and conventions that actually inhibit engagement – that is, where there is a preference for non-involvement. This – to anticipate later comments – ranges from internalised cultural norms about loss of face (thus it’s best not to do anything in order to avoid the risk of one’s own, or other’s, loss of face) to equally internalised norms of non-involvement in the civic or public space – that is, the rules learned along the way about the acceptable spheres of individual activity, which might specifically exclude the political and civic. On that last point, have a look at John Kampfner’s new book, Freedom for Sale: Why the world is trading democracy for security. See a review in the Guardian: http://www.guardian.co.uk/books/2009/sep/13/freedom-for-sale-john-kampfner

This series of blogs is also partly going to be shaped or – more likely – provoked – by conversations in my Ethics classes, in which it becomes plain that the highly moral, socially-concerned local students are also predominantly influenced by a utilitarian calculus . . . which leads to interesting conversations about wage differentials, sweat shops, investing in companies that derive all their income from military hardware (basically, that’s OK, as there’s a guarantee of a good return). Principally, there’s an abiding thread in the discussions about the obligations of the bystander. And at this stage I have some ill-formed thoughts about the norms of bystander obligations, social norms of deliberation and engagement (and the greater the degree of perception that you can change things, the greater is the level of engagement – though not necessarily articulate or civil engagement, but that’s another task!).

The most immediate point of departure is an article on empathy and moral judgment in the magazine of the “Greater Good Science Center” which I hadn’t heard about until today. That article – “The Evolution of Empathy [http://greatergood.berkeley.edu/greatergood/2010/january/De_Waal.php] – explores the foundational nature of empathy and the manner in which empathy remains “core” while is has been surrounded by the development of a range of other social, linguistic, cognitive and moral tools. De Waal’s conclusion:

“Emotions trump rules. This is why, when speaking of moral role models, we talk of their hearts, not their brains (even if, as any neuroscientist will point out, the heart as the seat of emotions is an outdated notion). We rely more on what we feel than what we think when solving moral dilemmas.”

This has a twofold relevance for me at the moment: one is in the explorations in ethics of moral psychologists like Jonathan Haidt and Josh Greene (especially Haidt’s intriguing work on the stronger moral foundations of conservatives over liberals . . . which is a bit troubling for card-carrying liberals: see http://www.ted.com/talks/jonathan_haidt_on_the_moral_mind.html]; the other is a speculation on the manner in which empathy, and its legitimate expression, are shaped by culture. This links back to the theme – rules of engagement – because empathy also implies at least a degree of engagement with the “other”. And it also may link to the range of cultural norms on non-intervention, non-expression etc.

De Waal’s commnent is that:  “. . .  empathy comes naturally to us. It is not something we only learn later in life, or that is culturally constructed.” But in addition to this, it is not immutably hard-wired in terms of our expression of empathy or what is socially and culturally acceptable by way of overt expression of empathy, opinion and so on. Think of the differences between those members of different cultural worlds you know in terms of a greater or lesser willingness to offer opinions – sometimes opinions you’d rather do without or didn’t really ask for. So, it may not be culturally constructed in the sense of having its origins in culture; but empathy – as a form of overt expression – is likely to be culturally constructed.

And this is where the link with dispute resolution comes in, especially to the extent that the ‘conversation-based’ processes – negotiation, mediation – depend on a greater degree of engagement and willingness to become engaged. Here we begin to see the impact of the differences in the ‘rules of engagement’ in that, as a rough generalisation, the Asian norms will tend towards non-engagement, non-contradiction, and deference to the opinions of those higher up the perceived social hierarchy.

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The bookshops here in Singapore are full of well-priced and familiar titles on negotiation (less so on mediation); and they are typically found in the “business communications” sections of the larger bookshops. Not far from these books, you’ll also find titles such as Sun Tsu’s The Art of War – and we sit (mostly comfortably) astride the norms and styles of East and West: a highly commercialised and modern, yet also traditional and hierarchical society.

What provokes today’s entry are a couple of comments, necessarily anonymous for this purpose, from students in a negotiation class, in their reflections on the negotiation simulations we’ve done and on the reading I’ve asked them to do.

First: we’d normally associate this region with a preference for the negotiation that is built on foundations of relationships, at least established sufficiently to move beyond the mere time-oriented efficiency associated with the West. What I note, however – and this is not a new observation for this year – is a preference for efficiency and pragmatism over enduring relations and principle. This is a bare description, I know, but I got an interesting reminder in a student comment to the effect that “we’re taught to be efficient in decision-making”. Quite what this efficiency amounts to is another matter, but it is likely to focus primarily on the completion of the deal in a timely manner.

More interesting – at least for observers from the West – might be the comment of another student in relation to the efficacy of threats used by Chinese-Singaporean parents, in comparison with the perceived soft threats by Western parents. The point made by the commentator is that the attempts to ‘reason’ with a child are usually futile and that more tangible threats are more effective: “Parents these days are attempting to negotiate and “talk sense” into their children instead of caning them, which is why so many of them are running around screaming their heads off, and hanging off the MRT handles. Nothing a good cane cannot cure, I’d say.”

This must be an interesting starting point for a conversation between New Zealand, with its ongoing debate about the repeal of s.59 of the Crimes Act (which effectively provided a defence to a parent who had used force, even violence, in the control of a child), and Singapore with its continued use of the cane as a part of the criminal punishment system.

But even without getting into that debate, which is not the point of this entry or this blog, what does interest me is the degree to which our assumptions about negotiation – and negotiability – are shaped by these norms which reflect differences in hierarchy, authority and power. They will surely also shape how we even regard the idea and process of mediation.

At the very least, the norms of Western mediation rest on a number of assumptions including:

–         full participation in problem analysis and resolution;

–         the agency of participants – that is, their capacity and willingness to engage in decision-making;

–         the  relative informality of the process (which, as we will see, is likely to be difficult in high power distance cultures);

–         the relatively low substantive authority of the intermediary; and

the emphasis on interest-based bargaining, which assumes not only that the parties are attending to negotiable interests rather than values but also that the interests are subject to the bargaining choices and mandates of the parties.

Similarly, intercultural studies add to our knowledge through not only emphasising the diversity in the structure of social relationships and factors such as social mobility, but also in pointing to the persistence and reality of asymmetrical relationships and to the perceptions and norms which sustain and legitimate that asymmetry. Inequality of relationships and decision-making authority in negotiation counterparts is not likely to be mitigated merely through the adoption of a set of process norms that, for example, assume or seek to create equality of participation and voice in any transaction.

We can also say that the acceptance of authority – and at of the power that comes with it – has a countervailing aspect: The corollary of such acceptance of commitments reflecting hierarchical relationships is that those possessing authority are expected to act justly. Thus, in countries of moderately high power distance (in the terms of the model provided by the recently-deceased Edward T Hall), such as Hong Kong, Taiwan, and Singapore individuals are aware of hierarchies but regard this as acceptable provided that those in authority also acknowledge, and act on the basis of their obligations. Members of such nations will still acknowledge frustration at aspects of power distance, but rarely act overtly on that frustration, though it might have an impact on, for example, organisational efficiency.[1]

So, what’s going on under these brief and illuminating observations by negotiation course members is a set of assumptions – which will have their parallels in other regions of course – about the nature of social relations, power and authority . . . and the impact this is perceived to have on one’s autonomy in decision-making in negotiation or mediation.


[1] Norma R.A. Romm, Cheng-Yi Hsu, “Reconsidering the exploration of power distance: an active case study approach,” Omega (The International Journal of Management Science) 30: 403 – 414 (2002)

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“Our lives are rooted in story. Our stories are our lives. We find out who we are by the stories we tell and are told. The lives we live and the conflicts we embrace are held together by motif and myth. If we are to gain a sense of who we are, where we stand in the world, what our relationship in and with the world is to be, then we must see how our story works. A story is a way to articulate what it is we are living through and how the world lives in us as we live in it … Stories give meaning to common and shared experience.” [1]

In several recent posts I’ve touched on issues of culture, perception and conflict raised by observers like Nisbett and Kim, and by commentaries on mediation and dispute resolution in China. In thinking about this question of geography and disputing I’m reminded of my first encounters with the icon of the “geography of place”, Yi-Fu Tuan, Emeritus Professor of Geography at the University of Madison, Wisconsin. My former university library had the happy practice of displaying new books for a couple of weeks, allowing magpies like myself to see what else was out there other than the books that were more obviously related to my ‘home’ discipline (law). And Prof Tuan’s was one of the early discoveries

Have a look at Prof Tuan’s home page: http://www.yifutuan.org/. And a biography of Prof Tuan: http://geography.about.com/od/historyofgeography/a/yifutuan.htm

The point of mentioning this:

  1. to pick up and continue the earlier threads on “place” and conflict resolution;
  2. to incorporate Prof Tuan’s linking of place, aesthetics, ecology and perception into those earlier comments on culture and dispute resolution;
  3. to reinforce the idea that “experience” – whether it’s aesthetic or otherwise – is ‘located’;
  4. to recognise that THIS is also part of what is contested in conflict: our perceptions, as well as the literal physical space in which they are grounded, is at issue;
  5. and to recognise that while there might be common ground in much of our negotiation and mediation practice, that common ground is also mediated via our perceptions.

There’s also a lovely collection of letters that Prof Tuan has written over the years to his colleagues at the University: http://www.yifutuan.org/archive/2009/index.htm

Now, just one question for the moment arising from this: if, as this line of thinking suggests, place, location, space, and geography matter, in shaping our perceptions and responses, what changes are likely to take place – to have already taken place – in the online world? If, as is already the case, millions of people have millions of “friends” with whom they share the daily details of their lives, without having necessarily met them, or at least without regular contact, does “place” matter as much?

Does geography matter more to the “digital immigrants” than to “digital natives” – the latter being that generation who have grown up with the familiarity and expectations of the digital world? http://en.wikipedia.org/wiki/Digital_native; http://www.marcprensky.com/writing/Prensky%20-%20Digital%20Natives,%20Digital%20Immigrants%20-%20Part1.pdf

What’s the impact of the dual trend that people may be both:

  1. better connected to each other and the rest of the world through the Internet; and
  2. increasingly disconnected from the contexts and culture in which they physically live?

At the very least, the nature of ‘participation’ changes as there is scope for enhanced global participation and, at the same time, a risk of retreat from domestic participation if there is a greater sense of affiliation and common ground with dispersed others. See Merlyna Lim, Islamic Radicalism and Anti-Americanism in Indonesia: The Role of the Internet, (East-West Centre, Washington, 2005)

“For those people who are or perceive themselves as marginalized, the Internet provides new openings and configurations in order to scale up their movements and relate local events to global levels and scale them back down again to local levels in a manner that can empower a handful of people beyond any level previously imagined. But in a world of intensifying cyber-traffic, this sudden empowerment avoids ephemerality only to the extent to which is can tap into larger identity and political structures.” [1]

At the best, there might be a new kind of geography:

Blulmer and Coleman have argued that the internet possesses ‘a vulnerable potential’ for this role [ie civic engagement and deliberation] and that the creation of a ‘civic commons in cyberspace’ which ‘could become part of the democratic furniture: an integral component of the representative system (the Commons) and an open space for the represented to gather and talk (the civic commons).’

(Coleman and Gøtze, 11, citing J G Blumler and S Coleman, Realising Democracy Online: A Civic Commons in Cyberspace IPPR/Citizens Online, 2001, p. 4-5)


[1] Eli Wiesel, quoted in J. Elkins, “The quest for meaning: narrative accounts of legal education,”Jnl of Legal Education v. 38 (Dec. ’88) p. 577-98

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There’s a nice comment in Peter Adler’s Eye of the Storm Leadership, on the nature of conflicts, how they arise, escalate, and how we have or lose the windows of opportunity to deal with them.

They begin with some actual or impending sense of injury: a grievance, a complaint, a sense –- rightfully or wrongfully — of being victimized. Demands are made. When the offers are rejected, threats, bluffs, and brinkmanship ensue. As the fight escalates, matters move to action. People demonize each other. Communication channels sever. People rely on lawyers, handlers, and press agents. Fights ripple outward with unintended consequences and sometimes surprising revenge effects. Others, with or without an immediate stake in the fight, are swept into the vortex. Coalitions form. Battles become more tactical, heated, and fearful. All the while, there are little punctuations and hesitations, moments when the window of a possible resolution opens and closes. Those are what we are listening and scanning for.

In conflict, we see people at their worst. In resolution and reconciliation, we see them at their best. The core matters — creativity, imagination, and forgiveness – – are possible in every conflict. Don’t be put off or sidetracked by emotional intensity. Down below there are solutions that can be excavated.

p.46 -47 of the print version; p.8-9 of the “Into the Fray” section on the CD version.

There’s both a generic and a cultural element to this:

  1. the first is that it’s astonishingly easy to slide into misperception, misapprehension, and – especially – to adopt the victim role in imagined wrongs; and that we can and need to be watchful for the opportunities to open the doors and windows that have been abruptly closed – though there will be times when this doesn’t work; and
  2. the second is that – in addition to the personal, intrapsychic aspects of how and why we slide into conflicts and real or imagined slights – there will be cultural dimensions as to how such events can be managed, not least involving the preservation of face, the use of intermediaries, to greater or lesser role of social norms, the capacity to sever relationships without great social cost (in those more individualistic worlds), and the role and power of alliances.

The intriguing thing about a statement such as this is how disarmingly simple and obvious it is . . . and yet how impossibly difficult it appears at the time.

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A couple of senior and experienced mediators here in Singapore have told me of a breakthrough strategy that has worked well for them in cracking an impasse. One of the mediators – also a senior lawyer and arbitrator – has used this on a number of occasions though both he and my other colleague confess to some slight reservations in using it.

The strategy: when parties are separated by a final gap in their settlement figures, or seem simply unable to arrive at an agreement, though the mediator suspects from caucus comments that agreement is possible, then the mediator suggests “Well, if you can’t arrive at an agreed figure, then at least do it for me (i.e. the mediator)” And it works.

But . . . it works, I suspect, only in some contexts:

  • where a mediator is regarded as having some kind of authority, notwithstanding disclaimers of decision-making authority and role;
  • thus in more stratified or hierarchical societies;
  • where the preservation of “face” is a perceived obstacle to making the final concessions, but “doing it for the mediator” is a way for parties to save face;
  • thus where this request from the mediator in fact adds a further principle or justification, in the process of finding reasons for acting; and
  • in social contexts where exhortations to act in certain ways – being courteous, giving up seats in a bus, being gracious etc – are commonplace.

The print on this photo may be too small but the banner carried by the “lion” reads “It’s kind to move to the rear of the bus so others can board”; and the placard reads “Special Diet: Please feed with acts of kindness.”

Exhortation to virtue

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I know that my colleagues Joel and Hwee Hwee have just edited a new book on An Asian Perspective on Mediation (and, for goodness’ sake, I have a couple of chapters in that book), but there’s something that still puzzles us. Here’s the scenario:

  • it’s a fruit market here in Singapore, with mountains of fresh fruit on sale at pretty good prices – better than the supermarket anyway;
  • the fruit – let’s say, lychee and rambutan – are advertised  at the same price per kilo
  • we ask for a mix of around a half kilo of each but the stall holder won’t do it – even though the fruit is piled side by side, the price is the same;
  • we ask why, and he just says he cannot;
  • so we ask if he’ll just grab a random kilo worth of fruit from the adjoining lychee and rambutan piles, but he won’t do it;
  • so we walk away; a perfect lose-lose negotiation.

This is akin to the questions raised in the occasional articles in the Negotiation Journal along the “what would you do if . .. ?” style.

So,

  • how are we to interpret the preference not to make a sale over the – apparently – easy task of bagging fruit on the same stall tray?
  • how are we to indicate our preference for a lesser amount of each fruit (it deteriorates rapidly in the tropics)?

This translates into other spheres of negotiation – including a landlord’s preference to leave a house or apartment empty rather than taking the reduced rent that actually reflect current market value for rents.

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At the Asian Mediation Association conference, President Martti Ahtisaari drew attention to the links between governance and conflict resolution, and the need – at least in settings of intense conflict – to develop these strands together. It’s interesting to note this discussion closer to home, in the context of the stable political environment of Singapore, in comments by two academics on the relationship between governance, the experience of citizens in decision-making, and dispute management:

http://www.smu.edu.sg/news_room/smu_in_the_news/2009/sources/TODAY_20090606_3.pdf

For Singapore Management University law academic Eugene Tan, what the protracted public spat [in relation to leadership of the Association of Women for Action and Research] also threw up was the fact that Singaporeans, it seems, “have not learnt to resolve difficult issue without the need for subtle Government guidance”.


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