The Natural History of Negotiation and Mediation - The Evolution of Negotiative Behaviors, Rituals, and Approaches PDF

1/30/2019 The Natural History of Negotiation and Mediation: The Evolution of Negotiative Behaviors, Rituals, and Approaches
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Mediate.com Since the end of World War II, in which the specter of nuclear
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Sign Up Now of con ict management, negotiation and mediation were re-
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Also from process, however, the history of

Resourceful negotiation, a process that has always been
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and collaboration are being ever more quickly revealed by
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Resolution Every human being negotiates at some point in his or her life,
on some matter or another, some more e ectively than
Mediators by others. We have survived and thrived as a species largely
Practice Area: because of this ability. And, of all the modes of con ict
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Business management, negotiative processes are the most exible, Pilot mediation
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Divorce (all issues) controversies. In early human history, those disputes mostly
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Elder communities. Yet, despite the abject necessity of negotiation Massacre civil suit
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centuries, as societies have become more socially, politically,
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more profound than ever.
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Re ection Tool
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Massachusetts Susan Yates
Mediators there are appointed ombudspersons whose role is to use
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stresses and disputes. However, unlike a judge, arbitrator, Opposing Views
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authority to impose a result or determination in a
E ective Con ict
Missouri controversy, either by law or contract, negotiators and Management versus a
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mediators have no such power or authority, although Quick “Fix”
Mediators sometimes arbital, negotiative and mediative processes are Lorraine Segal
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joined or overlap. (Brown, Henry, and Marriott, Arthur, ADR read all
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Ohio Mediators research decisions. When rules, laws, regulations, and
Oklahoma resolution. It is the go-to
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formalized policies cannot or do not e ectively serve to settle resource for con ict
Oregon Mediators controversies or issues that require greater nuance or resolution. My clients
Pennsylvania
exibility, negotiation and mediation are the primary means frequently comment on
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by which people reach some level of accommodation to live the wealth of very useful
Rhode Island
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and work together.
South Carolina the site. The dedication
Mediators and innovation of its
South Dakota Many con ate communication with negotiation, believing creators guarantee it to
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that the display of empathy and understanding are su cient be an in uential resource
Tennessee
Mediators to resolve issues or con icts. While the capacity for empathy to the world for decades
Texas Mediators and ability to communicate are essential components, they to come."
Utah Mediators Joshua King
Vermont are not a substitute for e ective negotiation. Negotiative
Mediators behaviors are the give and take that leads to workable More Testimonials
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Washington arrangements between people, often times in circumstances
Mediators where empathy and communication are only barely present.
West Virginia Most Popular
Mediators Negotiative behavior is the muscle and bone that converts
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Wisconsin the visceral human instinct to survive and the recognition
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that collaboration and cooperation are required, into reality, Seven Steps for
Mediators regardless of the relationship of those involved. E ective Problem
Solving in the
Mediators by The Evolutionary Process Workplace
City: Tim Hicks
Albuquerque
Mediators Human negotiative behaviors, rituals, approaches, have 13 Tools for Resolving
Arlington evolved in form over the centuries, adapting to shifts and Con ict in the
Mediators Workplace, with
Atlanta Mediators
changes in the surrounding social, biological, political,
Customers and in Life
Austin Mediators cultural, and economic environment. Those behaviors, not Lee Jay Berman
Baltimore unlike every other manifestation of human biology Are You Really Ready
Mediators for Divorce? The 8
Boston Mediators physiology, psychology, and language, are subject to the
Questions You Need to
Charlotte basic principles of Evolutionary Theory. Arguably, the human Ask
Mediators
Chicago brain itself, which has increased in size over the centuries, is Bruce Derman, Wendy
Mediators due in part to an increased use of negotiative processes. Gregson
Cleveland
Mediators Some physical anthropologists conjecture that the change is Styles of Mediation:
CO Springs not so much a function of the need for a greater reasoning Facilitative, Evaluative,
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Columbus
capacity, but rather to manage and deal with the increased and Transformative
Mediation
Mediators complexity of social and political a airs and the need to
Dallas Mediators Zena Zumeta
Denver Mediators
process and deal with those interactions. Speci cally, as
Detroit Mediators people have come to live more closely together in larger and New California Law
El Paso Mediators
more dense cities, they have a greater need to be able to
Fort Worth
Mediators detect and protect themselves from deceptions and potential
Fresno Mediators
threats from others, and in turn, to be similarly strategic in
Houston
Mediators their own dealings. (Dunbar, Helen, Grooming, Gossip, and
Indianapolis the Evolution of Language, 1996) Language and
Mediators
Jacksonville communication skills have similarly evolved in response to
Mediators the changing nature and demands of social relationships,
Kansas City
Mediators political systems and governing structures. (Pinker, S., The
Las Vegas Language Instinct, 1994, and The Better Angels of Our
Mediators
Long Beach Nature: Why Violence Has Declined, 2011) As to whether such
Mediators evolutionary adaptations can be labeled as positive or
Louisville
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negative and signs of human progress, or not, is another
Los Angeles issue.
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Memphis
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Negotiation is Not a Uniquely Human Behavior
Mesa Mediators
Miami Mediators The natural history of negotiative behaviors and rituals does
Milwaukee
Mediators
not begin with the human species. Sometimes human hubris
Minneapolis can block or marginalize our awareness that all animal
Mediators
Nashville
species exhibit rudimentary forms of negotiation behavior,
Mediators many of which are apparent in the human behavioral
New York City
repertory. While humans clearly have a higher level of
Mediators
Oakland consciousness, the ability to think conceptually, and
Mediators
advanced language skill, at core, not unlike all other species,
Oklahoma City
Mediators we have an innate biological instinct to survive. To that end,
Omaha Mediators we have necessarily developed cooperative protocols, rituals
Philadelphia
Mediators and behavioral patterns and display many of the same
Phoenix characteristic expressions, cues, signals, and behaviors, as do
Mediators
Portland other species, to manage both internal group tensions and
Mediators con icts and to organize protective defenses against external
Raleigh Mediators
Sacramento threats. (Darwin, Charles, The Expression of the Emotions in
Mediators Man and Animal, 1889/1998) Animal ethnologists have noted
San Antonio
Mediators
many striking resemblances between animals and humans
San Diego available for observation at any local dog park or on the
Mediators
San Francisco
street. A dog’s low growl is, for example, not unlike a human’s
Mediators issuance of an ultimatum, saying in e ect, “this far and no
San Jose
Mediators
further--or else…” (Horowitz, Alexandra, Inside of a Dog,
Seattle Mediators 2009) Similarly, most every species has protocols that allow
Tucson Mediators defeated or weaker group members to retreat and survive.
Tulsa Mediators
Virginia Beach The Social Darwinist notion of the “survival of the ttest,”
Mediators popularized by writers such as Ayn Rand, dubiously
Washington D.C.
Mediators popularized an inaccurate understanding of Evolutionary
Wichita Mediators Theory. While humans, and other species, can be brutal
...more
towards perceived enemies, but they have also frequently
International exhibited empathy for and tolerance for those less able to
Mediators: contribute. Those dominant in a culture have regularly
Australia
Mediators
allowed “lessors” some room to negotiate their existence. If
Canada Mediators humans are innately aggressive, they also have a cooperative
India Mediators
Germany
instinct to moderate that aggression; war invariably begets
Mediators the negotiation of a re-stabilizing “peace.” (Aureli, F., and De
New Zealand
Mediators
Waal, F.B.M., Natural Con ict Resolution, 2000; Wilson, E.O.,
Singapore On Human Nature, 1978: Wright, Robert, The Moral Animal,
Mediators
1994)
UK Mediators
Turkey Mediators
Nigeria Mediators For humans, an awareness of the natural history of
negotiative behavior, rituals and approaches is important for
three reasons. First, to become aware of the continuing
relevance and evolutionary purpose of many traditional
negotiation tactics and approaches that are otherwise prone
to being dismissed as primitive and anachronistic. Second,
studying this natural history o ers an important alternative
perspective on the multitude of styles and models of
negotiation that have cropped up so as to hold in check the
resulting orthodoxy of practice which can impair practice
competency and e ectiveness. Third, the history provides
clues to understanding and neutralizing the still persistent
and deeply ingrained ambivalence and resistance to
negotiation.
Despite the Necessity, Most People Do Not Like to

Negotiate: Sources of Ambivalence and Resistance
Despite the necessity to negotiate, and that it is a eminently

sensible approach to settling di erences, many people have
an ingrained ambivalence toward and resistance to
negotiation or mediation. While many profess to like the
idea of cooperating in theory, they nd the actual practice of
compromise to be far more problematic. This ambivalence
has shadowed the negotiative processes throughout history.
The suspicion even extends to the motives of those who
would recommend or suggest that they engage in
negotiation. While many presume that anyone, given the
option to settle a dispute by negotiation or mediation, would
rationally choose to do so, that logic does not hold
consistently. In fact, despite the unquestioned need for such
services, few people negotiate or mediate easily or willingly.
Many people, regardless of culture, continue to be gripped
by a centuries old, deeply ingrained resistance to such

negotiative processes, which frequently threatens, and
sometimes trumps, reason, and can even overwhelm the
instinct to collaborate. Con ict management practitioners
cannot a ord to minimize or dismiss the emotional depth of
peoples’ historical ambivalence and resistance to negotiative
processes in their understanding, marketing and practice
approach.
There are Four Primary Sources of Resistance to

Negotiation: Neurobiological, Cultural, Psychological,
and Moral
Biologically, the human brain is not the neatly ordered

computer like organ of popular imagination; in fact, that
functioning is often a messy a air. When threatened by
others or a di cult situation, negotiation is seldom people’s
rst choice and not considered until all other modes of
con ict management have been exhausted, namely the
“ ght- ight” syndrome. Neuroscientists have con rmed there
is a neurochemical release in the brain, triggered by a
perceived threatening circumstance, to either withdraw and
avoid the situation, or ght back. There is no neurochemical
trigger to negotiate. Negotiation is typically a secondary
response, which requires an e ortful, conscious and
intentional decision to engage the threat alternatively.
Psychologically, a person in con ict must overcome their

initial impulse, or gut reaction, against dealing face-to-face
with a person or persons with whom they are at odds.
Depending on the extremity of the situation, those other
people can very quickly become identi ed as not merely
having di erent views, but as adversaries or enemies. While
training and experience can help minimize such inclinations,
few can avoid the feelings entirely. The e ort necessary to
overcome such initial reactions and consider a negotiated
compromise often takes more time and e ort than most
people realize. Not even experienced negotiators and
mediators are immune to this piece of “predictable human
irrationality.” Especially in a culture dedicated to the belief in
rationality, most people enter a dispute with a sense of being
right in their view of the matter, justi ed in their position,
and unwilling, if not loathe, to compromise. To do so, is akin
to “giving in,” or worse, compromising the truth and “selling
out” their principles. For many people, as cognitive
psychologists have demonstrated, their self-assuredness is
only matched by their over con dence. An example of this
form of predictable irrationality is commonly apparent
among both parties and lawyers in many legal controversies
where each side will unabashedly predict victory and

vindication. In accord with the prevailing myth of justice,
each side will claim that any ostensibly independent and fair-
minded third party, be it a judge or a jury, will render a
determination in their favor. They often persist in making
such predictions despite considerable evidence that
demonstrates such con dence in the outcome is
unpredictable and unjusti ed. The balance is precarious:
from an evolutionary perspective, human irrational
commitment, determination, and dedication to a belief has
proven helpful to bring about the acceptance of many ideas,
the propriety and logic of which were initially in question; at
the same time, if commitment that lapses into stubborness
and intransigence can lead to faulty judgments and poor
decisions. (Kahneman, D. Thinking Fast and Slow, 2012)
In most controversies or con icts the people and

professionals involved--- including the negotiators and
mediators--will be faced with the challenge of managing their
human, “predictably irrational” propensity to make
“fundamental attribution errors” about those with whom
they are engaged. It is hard to avoid casting those with whom
one disagrees, whether in politics, disputes, or even
intellectual discussions, as either naïve, illogical, mentally
slow, unreasonable, or sometimes even evil. (Ross, L, and
Ward, A., Naïve Realism, 1998) Being aware of the propensity
does not appear to be a prophylactic and certainly does not
cure it.
Finally, many people are psychologically reluctant to take the

responsibility for their own decisions that negotiation or
mediation require, and not uncommonly defer to experts.
This is especially so in a complex technological society where
people are often confused and overwhelmed, often
unfamiliar and uneducated in even the basics of negotiation,
and stressed by the con ict. All of this is exacerbated by the
common pre-disposition of many to view negotiation as a
risky venture and to hesitate to participate for fear they will
be taken advantage of and played for a fools by a devious
adversary. While almost every news broadcast includes
reference to some matter being negotiated, most people
have not been actively involved nor have much personal
experience in negotiation. The nature of negotiation practice
is di use and often undi erentiated from one’s philosophy
of life. Although a critically important skill set, negotiation is
not taught in schools and there are few courses for the
general public, or for that matter, for professionals, and the
“self help” literature is sketchy, and in any event, an
inadequate substitute for thoughtful preparation. Most
people have learned to negotiate, “by the seat of their pants”

---a hit or miss proposition at best. As a result, especially in a
techno-rational culture, where professional experts are
thought to be imbued with special knowledge and authority,
the default choice for many people in con ict, be it personal
or business, is not just to consult with them, but to “be safe,”
to follow their “advice”--- or more accurately, their direction.
Culturally, especially in dominant cultures with a strong

militaristic tradition, the willingness to negotiate is
considered a sign of weakness. John Wayne, for example, not
just a movie star, but an American cultural icon, would never
negotiate. He, and the progeny of action stars that have
followed him, embody the quintessential action gure many
people -- not just men -- want to emulate. Action heros force
or compel change; they have their own internal sense of
justice and waste no time negotiating. Especially In the
American Western lm genre, the “bad guys” are the
bureaucrats who want to negotiate, make deals and
compromise. (Benjamin, R.D., “Reel Negotiation: The Good,
The Bad, and The Ugly- Re ections of Negotiation and
Mediation in Film,” Mediate.com, 2006) Most action dramas,
be they television, lm or video game, have a script that
perpetuates the cultural Myths of Truth and Justice. This
provides a steady “fast food” diet that reinforces the belief
that for every problem there is a simple, correct, and right
answer, which is discoverable, leaving little room for
negotiation.
Negotiation is considered by many to be not just a sign of

weakness, but an immoral and sinful act. Even if none of the
people involved in a dispute are religious and the issue
seems relatively minor---a dog barking case or property
dispute---the matter still has a moral dimension. The
description of a negotiated agreement as “doing a deal with
the devil,” The metaphor associates and structures
negotiation, at least partially, as an evil act. (Lako , George
and Johnson, Mark, Metaphors We Live By, 1980) Elaine
Pagels observes in her book, Adam, Eve, and the Serpent
(1989), that in Christian theology Satan is the archetype of
evil and his primary modus operandi is to tempt, deceive,
persuade, and negotiate for human souls. Nowhere has the
in uence of this theology permeated more pervasively than
in human negotiative behavior. (Benjamin, R.D., “Negotiation
and Evil: Religious and Moral Resistance to Settlement,”1998)
With this framing of negotiation, it is easy to understand how

many would assume the best defense against Satan’s
seductions is to maintain a rigid and uncompromising
position and refuse to negotiate on any matter where

principle is involved--- and there is a principle lurking in
almost every dispute. The risk of crossing the line in a
compromise, even if a sensible one, raises the specter of
selling-out. While making a deal is for some indicative of
pragmatic exibility, for others, it is a sign of relativistic
thinking, moral laxity and questionable character. The
association of negotiation and sin is not infrequent or
inconsequential. A father in a divorce case who has o ered
to pay more child support in return for more time with the
children is often subject to being accused of immorally
treating the children as property to be bought and sold.
Likewise, in business matters, many refer to legal actions as
intimidation, coercion or even “blackmail, ” which an
especially common response to a party’s allegation of “sexual
harassment” in a workplace matter.
The suspicion of negotiative processes often extends to

questioning the character of anyone who would engage in, or
suggest, the negotiation of a controversy. Neville
Chamberlain, the British Prime Minister, was accused of
appeasement because of his negotiation of the Munich
Accord with German Chancellor Adolf Hitler in 1938, seeking
to short circuit World War II.. Similarly, President John F.
Kennedy’s character was questioned for his pursuit of a
negotiation with then Soviet Premier Nikita Kruschev, instead
of a rst strike military action in the 1962 Cuban Missile
Crisis. (Kennedy, Robert F., Thirteen Days, 1969; lm Thirteen
Days, 2000)
In the same fashion, while mediators and negotiators view

their day-to-day work as a well-intended and noble e ort to
resolve con ict, they are frequently viewed far less favorably,
not only by other professionals, but by the parties with
whom they are working. For those unfamiliar or
unsupportive of the negotiation or mediation, especially in
complex matters, the often messy process that frequently
requires hard to explain trade-o s to reach a settlement is
particularly susceptible to second guessing and those who
have served as handmaidens and helped facilitate the
resulting deal are subject to severe criticism. In addition,
regardless of how well informed a party might be prior to
agreement, by nature, he or she is prone to su er “buyer’s
remorse.” They question their judgment in settling, and
sometimes displace their anger and blame on the mediator,
lawyer, or others who aided the negotiation process. Some
go so far as to revise and reconstruct their memory of the
agreement as one in which they were “coerced” to settle.
Neuroscientists have con rmed how facile the human
memory tends to be; reinterpretations of history are more

the rule than the exception.
Lawyers, politicians, and diplomats have drawn a

disproportionate share of scorn, not because they are less
principled or ethical than doctors, clergy, counselors, or other
professionals, but because their work requires more direct
involvement in negotiating and making deals. As such, they
have provided a good amount of fodder over the centuries
for the ridicule of caricaturists like Daumier, the satire of
Shakespeare and Voltaire, and punch lines for humorists and
comedians from Aristophanes, Mark Twain, and Will Rogers
to John Stewart and Stephen Colbert.
The ambivalence and suspicion of negotiative processes has

been carried down through the centuries. Richard Dawkins, a
noted evolutionary biologist, has suggested that negotiative
behaviors, along with other cultural rituals and traditions and
the disposition to practice them, are possibly transmitted
from generation to generation by “memes” in a process
analogous to the transmission of biological traits through
genes. (Dawkins, R., The Sel sh Gene, 1976) Clearly, some
ethnic and cultural groups tend to be more disposed to
negotiate than others.
The deeply ingrained historic resistance and ambivalence

towards negotiative processes has contributed to the slow
pace of acceptance and study of negotiative behavior to the
present day. While altered somewhat by the considerable
e orts in recent years to rehabilitate and remake negotiation
and mediation as rational and sensible modes of settling
disputes, that e ort has not cured or even substantially
dented the ambivalence. This is in some measure because
the sources of resistance, or for that matter, basic
negotiation skills, are still rarely taught or systematically
studied. This failure to appreciate the depth and extent of
depth of the resistance limits not only practice e ectiveness,
but the ability to successfully market and gain a wider public
acceptance of negotiation and mediation services.
“Style Wars” and the Risks of Practice Orthodoxy
The awareness of the natural history of negotiative processes

also o ers a perspective with regard to the multiplicity of
approaches, styles, strategies and techniques that are now
practiced. Those di erences, not surprisingly, have incited
rivalries between practitioners, professional organizations,
teachers and theorists and have encouraged practice
orthodoxy. These “style wars” are largely traceable to the
advent of the modern rationalist approach to negotiation,

especially over the course of the last 30 years.
Roger Fisher and William Ury, two Harvard Professors, wrote

Getting to Yes in 1981. As a reasonably short, accessible,
coherent and internationally popular primer on what the
authors term “principled” negotiation, it has become a bible
of sorts. The underlying premise is that people are rational
actors and that through discussion focused on their common
and respective interests, they can cooperatively arrive at
mutually satisfactory agreements. Those basic tenets have
come to undergird most of present day professional training,
teaching and academic curricula in con ict resolution.
Fisher and Ury, began the process of re-inventing negotiation

by dressing the process in the familiar intellectual frame of
reason and rational decision making theory and civil
discourse. In doing so, negotiation and mediation
practitioners could trade in their historic reputation for being
deceptive and manipulative agents and present themselves
instead as “neutral” and impartial problem solvers.
This modern re-shaping carries with it the active suggestion

that reasoned negotiative modes are not only di erent, and
a break from a past questionable practices, but also universal
in application. Rationality, arguably, eclipses the boundaries
of time, culture and circumstance, so that neither history nor
culture are especially relevant to whether this approach to
negotiation is applicable to solve a controversy. This modern
rationalist form purports to be a “win-win” approach of
expanding options and creative solutions. Fisher and Ury,
therefore, make little mention of the history of negotiation,
except to cast it as a jumble of outmoded tactics and
unnecessary game playing. Those more primitive forms of
the “hardball” power negotiation style, relied on tactics such
as positional bargaining, the use of ultimatums, and
deceptive or manipulative ploys, which Fisher and Ury
considered misguided, dysfunctional, and sometimes
unprincipled. As a win-lose contest between participants with
limited options in a “zero-sum” game, harsh and competitive
schemes are tacitly or directly encouraged. The rivalry
between the new-form rationalist approach and the
realpolitik approach of power negotiation remains erce.
Modern practitioners have acquired a strong antipathy
toward what they view as competitive and unprincipled
tactics, and in return, old style practitioners openly question
their naiveté about the nature of con icts in the real world. In
evolutionary terms, however, the continued presence of both
approaches suggests each may well have a current value,

relevance and purpose.
There is an ongoing tension between the more traditional

“hardball” power style of negotiation--- and in mediation, a
corresponding directive and evaluative style of practice----
and the more deliberative and facilitative, rationalist
approach of recent years. In addition, many other o shoot
styles of the rationalist approach have proliferated in recent
years due to the attention mediation services have garnered
from the formal legal system. In 1979, Harvard Professor,
Robert Mnookin, described mediation as a form of “private
ordering” between parties in an informal process that, while
in the “shadow of the law,” e ectively outside of that system.
(Mnookin, Robert, “Bargaining in the Shadow of the Law,”
Yale Law Journal, 1979) Now, 30 years later, to an extent
never before seen in history, through legislation and court
rule, that process has been insinuated and institutionalized
in the legal landscape. The expansion of available markets
for mediation services appears to have spurred the
emergence of many di erent “brands” of mediation.
Each practice style claims to meet special needs and

purposes that the espousing practitioners believe it unique
and set it apart from the others. The current style forms that
have emerged in recent years cluster around three poles of
in uence: the substantive dispute context of the matter, the
practitioners’ professions of origin, or an ideological belief
system.
The substantive dispute contexts that in uence style can be

as varied as the subject of the con ict. Divorce, family,
juvenile, victim-o ender, elder care, community, workplace,
employment discrimination, construction, personal injury,
mortgage foreclosure, damage claims, health care (‘medical
malpractice”), foreclosure, special education, disability
legislation compliance, environmental and sustainable
development, and public policy matters, are only some of an
ever increasing list of dispute contexts for which specialized
styles have begun to be generated.
The practitioners’ professions or disciplines of origin often

set habits of thinking and approach that in uence their
negotiation and mediation style include among others, law,
counseling, business, religion, community development,
urban planning, environmental management, or philosophy.
For many, the practice of con ict mediation and negotiation

is a form of peacemaking. Practitioners are drawn out of a
commitment to an ideological belief system that views
con ict as an opportunity for relationship transformation,

the pursuit of peace and social justice, or even the ultimate
alteration of human nature fostered by a dedication of a
deliberative process.
None of the style forms are wrong or misguided, and many

are serviceable. However, to the extent a style has been
adopted unwittingly, or out of habit, rather than by conscious
choice, can often limit a practitioners’ e ectiveness. Many
negotiators and mediators have tended to take on a
particular style because it appeared familiar and
comfortable, rather than carefully scrutinizing their
assumptions about the nature of con ict, how people make
decisions, and the available strategies and techniques most
e ective in the presenting circumstances. Style is most
heavily in uenced by, among many others, a practitioner’s
own personal experience, cultural and ethnic background,
religion, professional training, and conventional wisdom and
mythology. Speci cally, the approach and style of
negotiation and mediation practice in Western culture tends
to assume people make decisions in a cost e ective,
reasonable and mature way. Every practitioner has many
heuristic biases, or rules of thumb, some conscious and
others not, that enter into their choice of style. Some of those
biases are useful in certain circumstances, and others not at
all or even counter productive and unhelpful. Few styles are
e ective all the time, even in the same substantive dispute
context. Frequently, the teaching and training of negotiators
and mediators rei es and promotes a particular style as the
best or preferred and excludes or discourages the practice of
strategies and techniques that are viewed as inconsistent
with that model. For example, for a mediator to make a
tactical decision to meet privately with the parties in caucus,
should not be ruled by habit or style choice, but by the
circumstances and an assessment of risks and advantages of
the decision.
Not surprisingly, all of the prevalent present day styles and

approaches to negotiation and mediation have antecedents
in history. Whether drawn from an emphasis on the desire
to be cooperative, the inclination to be competitive, the
desire to be moral, or need to be pragmatic, each style of
negotiation or mediation has a useful purpose but is not
su cient in and of itself. For practitioners, the risk is to allow
their style of practice to become bound to particular context
or for them to use the same style in all dispute contexts.
Lawyers and business people, for example, are prone to

“rationally” view disputes as largely, “just a matter of money.”
They assume the predominant source of con ict to be

economic, or the scarce allocation of resources, be they time,
money, or energy. The issues are likely to be framed in legal
terms, based on an assessment of what a court might do,
and subjected to a cost-bene t analysis. This style is less
focused on the relationships of the people involved than on
reasoned analysis and the use of logic and persuasion to
reach an “objectively” based agreement. Their structuring of
the process closely follows the familiar form of a case
settlement conference common in legal proceedings. As well,
whatever the origin of the dispute, the matter is likely to be
transformed and framed primarily as a legal matter with
legal issues predominant. In this process, each side presents
an opening statement arguing their legal positions based on
suppositions of what a court might consider and determine
were the matter to be adjudicated. The respective parties are
commonly separated from each other, with either their
respective attorneys or a mediator going back and forth and
meeting with each side separately in a “caucus” so as to
minimize their need for personal contact. The working
assumption is that personal interaction between parties in
con ict will result in distracting altercations. (Menkel-
Meadow, C., “The Transformation of Disputes By Lawyers:
What the Dispute Paradigm Does and Does Not Tell Us,”
Missouri Journal of Dispute Resolution, 1985)
Negotiation or mediation practiced by those practitioners

with a counseling or mental health background, by contrast,
veers toward viewing the source of con ict to be faulty
communications between people and their failure to
acknowledge or appreciate others interests and needs.
There is a tendency to rely on the familiar strategies and
techniques that emphasize face-to-face personal interaction
between disputing parties in order to re-establish trust and
communication between them. Whether done out of habit
or by intention, this style often serves, intentionally or
unwittingly, a competing therapeutic purpose.
Each of these styles re ect, alternatively, the weight and

importance given to either the business and legal aspects, or
the relational personal dynamics of the dispute, often at the
expense of the other. Too rm an adherence to style can
block from the practitioner’s view that a business dispute
over a contract may be, at core, a personal dispute or
conversely, that a family dispute is about di erences
concerning business or nancial matters. The framing of a
dispute as a legal or personal matter, along with the
negotiation style preference used to manage the matter, are
as much, or more, conditioned by the professional discipline,
background and training of the practitioner. As a result,

whether out of a sense of the need to protect professional
territory and prestige, or a belief in their superior
competency, lawyers presume greater ability to negotiate
business and legal matters, while mental health
professionals presume to have greater expertise in family
and other relational disputes. This fragmentation of a dispute
can often constrict consideration of alternative approaches
to settlement and sometimes the success of the negotiation.
Business disputes are seldom, if ever, just a matter of money,
and family and personal con icts are seldom just about
relationships.
The choice of style is also in uenced by marketing

consideration. Many lawyers have taken to advertising or
identifying themselves as “lawyer mediators,” or as
“collaborative lawyers” in an e ort to present themselves as
more reasonable, humane and e cient. In recent years,
many law schools have sought to encourage that trend by
presenting courses in “legal mediation” and “mediation
advocacy.” Correspondingly, many mediation practitioners
whose profession of origin is in a mental health or
communications profession advertise the therapeutic values
of mediation. Courts and agencies refer matters to mediation
practitioners less because of their negotiation and settlement
skills, but based on their presumed substantive expertise and
subject matter familiarity. “Attorney mediators” are
commonly preferred to manage property and business
issues, while counselor mediators, or non-attorneys, are
chosen in family matters. This conventional piece-mealing of
con icts by label and the presumption that a particular style
of negotiation or mediation is necessarily suited to a matter
on that basis belies a limited understanding of negotiation or
the mediation process. In so doing, there is a heightened risk
that the core strength of negotiation will be lost. An e ective
agreement requires a systemic understanding of con ict and
obligates taking account of all of the elements of a dispute
including, the personal and emotional, business and
nancial, legal, and moral aspects of the matter. To do
otherwise limits the range of strategies and tactics a
practitioner might draw upon from the archive of negotiation
practice developed through the centuries, regardless of
context, culture. Strategies and techniques commonly used
in business matters can be usefully applied in a family,
workplace, or other matters, and there are more similarities
between political and international negotiations between
countries and a divorce, will dispute or family matter than
there are dissimilarities.
The institutionalization of negotiation and mediation practice

has also strongly in uenced styles of practice. Courts,
government agencies, school systems, universities,
corporations, and cyber space businesses have, not
surprisingly, found those con ict management modes far
more e cient and exible in moving disputes and cases
through bureaucratic systems. However, the strengths and
bene ts of negotiative proceses can also be problematic and
a weakness when incorporated into highly structured
organizations. The processes must necessarily become more
formalized and uniform in application; the role of the
mediator, ombudsperson, or other third party, must be more
tightly prescribed, and clear parameters pre-set for the range
of acceptable agreements. The risk of the third party
becoming, or being perceived to be, an agent of the
organization remains a constant concern. These have been
issues of concern in large scale damage claim matters, such
as the program for the compensation of victims of the
September 11, 2001t terrorist attack on the World Trade
Center in New York City, Hurricane Katrina in New Orleans in
2005, the BP Gulf Oil Spill of 2010, and home mortgage
foreclosure mediation programs around the country, as well
as in the use of mediation in the administration of individula
educational planning (IEP) in special education, and in many
government agency regulatory negotiation processes.
(Feinberg, Kenneth, What Is Life Worth, 2005; Benjamin, R.D.,
“’Mediation Is A Gamble’: A Sobering Review And Critique Of
Mortgage Mediation Programs,” Nov. 2010)
The ideal of a third party having the range of motion to

encourage creative thinking about the available options to
settle disputes---“outside the box” ideas--- and to have the
exibility to draw from a variety of negotiative styles,
strategies and techniques, can be easily compromised or
corrupted, even if unintentionally, by program policies and
operating rules. The design of a dispute resolution system
must include su cient awareness of what is required for an
e ective negotiative process if the negotiative process is to
remain e ective. Mediators, ombudspersons, and other
third parties have often become mere ministerial agents
doing essentially giving details of possible pro-forma
outcomes, or at the other extreme, pressed into being quasi-
arbitrators, giving evaluations and recommendations on
submitted claims.
The risk of practice style orthodoxy.
The advocates for each model or style of practice form tend

to form interest groups that lobby for recognition, assert the
need for special training and expertise, and seek to

establishes a certi cation process, or even pursue licensure.
Specialization is not a surprise from an evolutionary
perspective, especially in the Western techno-rational culture
where being recognized as a specialist has greater prestige
and marketing value. (Adler, Peter, “Protean Negotiation:
Rejecting Orthodoxy and Shifting Shapes, 2006)
Specialization can further the competency of practitioners,
but may limit exibility. The orthodoxy some adherents
profess or display for a particular style poses a risk to
e ective practice and public acceptance.
The study of natural history of negotiation provides an

e ective counter to stylistic orthodoxies and rivalries that
threaten to interfere with creative practice and competency,
but also give validity to strategies and tactics employed
throughout history which are too often dismissed as
anachronistic. If the primary purpose of human negotiative
behavior is to provide a safety valve---a pragmatic and
practical means of bridging di erences in ideology, values
and purposes between people---then negotiation and
mediation practice must remain exible in approach,
informal and systemic in focus. This is all the more
important in an increasingly complex and technical world,
has been a systemic focus, exibility and informality. For
example, the use of ultimatums, or other heavy-handed
negotiation tactics that have been used through the
centuries and which are often deemed as inappropriate by
many modern day practitioners, continue on occasion to
serve a necessary purpose.
The human instinct to cooperate, to survive and thrive as a

species, has fostered our active negotiative behavior for as
long as we have been a distinct species. As hunters and
gatherers, we had to cooperate about where and how to
hunt and what to gather. Later, some estimated 4000 years
ago, as the “productivities of farming gave rise to
governments,” negotiation was most surely advanced. Jared
Diamond, an eminent evolutionary biologist, has observed
that in addition to climate and geography, one of the more
important determining factors in the wealth of a country is
the presence of ‘inclusive political and economic institutions.’
The level of inclusiveness is the extent to which the general
population is allowed and encouraged to participate in
decision-making, thereby fostering an incentive to work. This
process is fundamentally dependent on people’s ability and
willingness to negotiate. (Diamond, Jared, “What Makes
Countries Rich or Poor?” New York Review of Books, June 7,
2012)
The Evolution of Negotiation and Mediation Approaches

Through History
There have been ve discernible approaches to negotiative

behavior that have evolved in successive periods of human
history. Each form, or approach, re ects characteristic
behaviors and strategies to manage the nature of the
con icts they have had to manage. First, in early human
history, with the constant wars, the primal negotiation
approach was focused primarily on survival. The second form
came about in the 16th century, during the Renaissance. The
internecine wars between city-states and the expansion of
trade required approaches to negotiation to became more
conscious and strategic. In the 17th and 18th Century, the
Scienti c Revolution and Enlightenment fostered a rationalist
approach to negotiation that carried through until the early
20th Century. In the current fourth period, since World War II
in the mid 20th Century, in an increasingly complex
technological world, the rationalist approach to negotiation
and mediation have been institutionalized and re ned. And,
emerging is a fth, post-modern approach to negotiation
based on studies in neuroscience and cognitive psychology
which have challenged the premises of rational decision-
making and necessitate taking account of peoples’
“predictable irrationality” in their decision-making.
In each negotiation period, the purposes served, how people

have viewed the process, their willingness to negotiate, and
the predominant strategies and techniques developed and
employed have been adaptations to the social, cultural, and
political environment of the time. In the course of the
evolution of negotiation behavior and rituals, negotiation and
mediation practice has become an increasingly more
conscious and intentional activity. Each approach has
incorporated the strategies and techniques of the earlier
forms and present day negotiations, regardless of dispute
context, re ects strains and visible traces of many, if not all,
of the prior forms of negotiation practiced in earlier
centuries. Few strategies or tactics have become extinct and
many so called primitive, or outmoded, tactics remain
relevant or have been re ned and adapted for current use.
1. Primal Negotiation
In early history, especially in the absence of any semblance of

a central governing authority, warfare and mayhem between
rival groups or tribes was common and largely unchecked.
This was the “all against all” world Thomas Hobbes described
in The Leviathan (1651). Negotiation, was very much in
evidence, although rudimentary in form, not too many steps

removed from the con ict management behaviors of other
animal species used to end ghts. Similar in purpose, the
focus of this negotiation approach is to serve the human
instinct to survive and every war or hostile action must be
brought to an end if that is to happen. This primal form of
negotiation is largely unschooled and more reliant on
visceral instinct than a planned, overtly conscious activity.
Contrary to popular thinking, war and negotiation are not

polar opposites, or necessarily, an either/or proposition. If
not symbiotically related, they are complementary to each
other. Throughout history, they have often been
indistinguishable from each other; some people consider
warfare as an extension of politics, or negotiation by other
means, and alternatively, view negotiation as a form of
warfare. The more severe the human aggression, the greater
the need will be, at some point and in some manner, for a
cooperative cessation of the hostility to re-stabilize the
relationship, or just survive. Even vengeful blood feuds and
protracted con icts must end at some point. And,
sidestepping the discussion of whether warfare is an innate
human trait, there is no getting around the ongoing
inevitability of con ict between people, some of which
threaten to become violent.
The management of the prosecution of wars, their ending,

and aftermath relations between the parties, has been a
primary driver and signi cant contributor to the
development of negotiative behavior over the centuries. As
warfare became more complex, the formation of intricate,
precariously balanced alliances to defeat a common enemy,
the negotiation of peace treaties, and administration and
occupation of conquered territories, required e ective
negotiation. If poorly negotiated, the seeds for future con ict
would be sown. Historians generally agree that the dubious
terms of the Treaty of Versailles, ending World War I in 1919,
contributed to World War II two decades later. In the same
way many advancements in medical treatment and health
care have paradoxically arisen out of exigencies of caring for
battle eld injuries and traumas, so too have many
negotiation strategies and techniques developed from the
urgency of ending wars.
The interplay between war and negotiation has been ongoing

throughout history. One of the earliest recorded discussions
is found in the writing of the Greek historian, Thucydides,
who considered the bene ts and risks of negotiation in the
Melian Dialogues in his chronicle of the 30 year
Peloponnesian War between the Spartans and Athenians. He

described the Athenians choice to e ectively massacre the
Melians ---a nominal group loosely aligned with the Spartans-
--instead of negotiating a truce. This was an early
demonstration of the “shock and awe” tactic that has been
used in warfare to the present day, which is designed to
break the will of the enemy. (Kagan, Donald, The
Peloponnesian War, 2003) Von Clausewitz, the 19th Century
German military and political theorist and architect of
realpolitik, succinctly and famously o ered in his work, On
War (1831), that “war is the continuation of politics by other
means.” While discomforting to those who would draw a
bright line between the barbarism of warfare and the
assumed civility of negotiation, they are closer in practice and
purpose than most people and practitioners recognize.
Many warfare strategies and techniques have been
incorporated into negotiation and mediation practice, and
negotiation strategy is a regular part of warfare. (Benjamin,
R.D., “The Guerrilla Mediator: The Use of Warfare Strategies
in the Management of Con ict,” 1999)
Military generals have been some of the most committed

practitioners and greatest contributors to the development
of negotiation strategy. Perhaps they became such erce
proponents being so closely perched to the death and
destruction of warfare and compelled to deal with survival
moment to moment. U.S. President Dwight D. Eisenhower,
formerly the Commander of the Allied Forces in World War II,
which itself required masterful and considerable negotiation
acumen amidst a mine eld of politics among French, British,
and American Generals, has retrospectively been accorded
greater respect as an e ective world leader. Although
frequently criticized as too cautious and tentative,
Eisenhower insisted on remaining open to negotiated
settlements short of “victory” throughout the Cold War,
where he was often strenuously pressed to resort to force.
(Powers, Thomas, “He Got the Big Things Right,” NYRB, 35-38,
April 26, 2012). Many years later, in the rst decade of the
21st Century, General David Petraeus, similarly recognizes
how the nature of war has been transformed; unlike the
past, the “enemy” is not a readily identi able uniformed army
clearly distinguishable from the civilian population. In his
career, based in part on the Viet Nam War experience, he
formulated the use of strategies and approaches to
neutralize insurgency actions in the recently ended Iraq War
and continuing Afghanistan War, which rely heavily on
negotiative and mediative strategies and techniques that
would be familiar to any experienced mediator. (Petraeus,
Gen. David H., The U.S. Army/Marine Corps
Counterinsurgency Field Manual, 2007) It is important to

point out, this new form of warfare, not unlike many complex
negotiations, is lled with ambiguity and often “unsatisfying”
especially to those who expect war to be a clarifying,
determinative and nal end to a con ict. Negotiation and war
are alike; they are both messy and “success” of the operation
is often di cult to measure. (Nagl, John A., “The Age of
Unsatisfying Wars,” New York Times, June 7, 2012; Nagl John
A. Learning to Eat Soup With a Knife, 2005; Van Creveld,
Martin, The Transformation of War, 1991) All that has
changed over time may be some shedding of the illusion that
the management of di cult con icts has ever been or is
likely to be otherwise, regardless of the mode employed.
Con ict scenarios where survival is at stake occur in the

present day, almost as often as they ever have and primal
negotiation approaches, strategies and techniques remain
necessary and relevant. Wars, hostile actions, hostage
negotiations, and even piracy on the high seas, are but a few
of the extreme circumstances where negotiation is employed
at some point to resolve the crisis. While some think such
situations are more the exception than the rule, aspects of
such extremes can crop up in many matters which are
otherwise viewed as unexceptional. The parties in a business
matter, for example, can become intensely angry and
threatening, with or without an apparent triggering incident;
feeling betrayed and mistreated is the starting point of most
disputes. Similarly, in a divorce, the summary and unilateral
closing of bank accounts by a party, or the threat to “take
custody” of the children can lead to a cascading of worst
fears and the feeling that very survival is at stake. Whether
those fears are real or imagined, people will commonly
justify the use of any means necessary in their defense,
including deception, subterfuge and other primal negotiation
strategies and tactics, if they negotiate at all.
Another long standing primal negotiation strategy that can

trace it’s origins to early human history is “don’t ask-don’t
tell.” Minority groups living in dominant cultures, be they
racial, ethnic, religious, of di erent sexual orientation, or
merely an immigrant or foreigner, have always had to literally
negotiate their survival and existence with the dominant
community. DA-DT evolved as an informal and non-verbal
negotiated arrangement where people deemed marginal
were allowed to eke out a living by doing distasteful but
necessary tasks or work while taking care to remain largely
invisible. People of color, Jews, those who are LBGT, and
most immigrant groups have all had to broker that deal to
survive in the past, and for some, for their whole history.
Many gay and lesbian entertainers or actors over the years,

including Liberace or Rock Hudson, for example, escaped the
condemnation of an otherwise homophobic American
culture in the 1950’s and 60’s as long as they did not openly
assert their sexual orientation. Similarly, DA-DT tactics
allowed the Jews of Europe to survive for centuries by serving
the dominant Christian culture as bankers, business people,
and doctors, thought then to be unsavory work. They did,
however have to live in Ghettos and endure the occasional
pogrom or inquisition.
In the primal negotiation approach, because survival is the

preoccupation of those concerned, the negotiative behaviors
are more a matter of instinct and ritual than conscious and
intentional actions and little or no attention is given to
standards of practice or ethics. The negotiator’s or mediator’s
primary focus is on presenting themselves as su ciently
authentic so as to elicit trust and credibility necessary from
the other party or parties to support the continuation of the
negotiation process. (Benjamin, R.D., “Terry Waite: A Study in
Authenticity,” Mediate.com, 2002)
In most primal negotiation scenarios, there is a signi cant

power balance di erential between the parties. The victors of
a war, at rst glance, have all the power and little need to
negotiate with the losers. At the same time, however, an
opponent with little to lose can be dangerous, and the cost of
killing everyone is high, both emotionally and nancially. In
addition, the cost of occupation and loss of resources from a
conquered territory can be considerable. Therefore,
notwithstanding the power balance di erential and the not
uncommon use of ultimatums and other coercive tactics that
do not conform to the modern day rationalist notion of a
“level playing eld,” there is often some form of leverage
available to the “loser.”
The di cult, or even horrendous, circumstances under which

many people felt forced to negotiate in order to survive likely
gave rise early on in history to a palpable dislike, and
sometimes outright disgust, for the negotiation process.
Historically, negotiation has been primarily a means for
“losers” to adjust their circumstances just enough to go on
living and seldom was it a pleasant experience. Certainly the
modern day notion of a satisfactory, let alone “win/win,”
outcome never came to mind. The negative association stuck
and has continued on through the centuries. This is
exacerbated by the common present day understanding of
negotiation being predominantly of the primal form, where
deception, coercion and other tricks are the norm. Donald
Trump, and others of his ilk, who proudly claim to negotiate

by intimidation, does not help to alleviate the public
misapprehension of negotiation. At the same time, some
primal negotiation tactics continue to serve an evolutionary
purpose and continue to be useful in appropriate
circumstances.
2. Strategic Negotiation
The active use of strategic thinking, conscious and intentional

planning directed toward manipulating people and
circumstances to bring about a desired outcome became a
core element of negotiation in the course of the 16th Century
Renaissance. This period was tumultuous with the Catholic
Papacy instigating wars against many of the Italian city-
states, while, at the same time, other foreign powers were
also battling for in uence and control. Political and military
alliances shifted continuously. This time was also a period of
burgeoning commerce and economic growth with the
accompanying political intrigues which required people to
develop a heightened awareness of the actions and motives
of those around them and to assess who were potential allies
and who were enemies. Success, and sometimes survival,
depended on the ability to anticipate and counter
deceptions, and alternatively, to be strategically deceptive for
their own protection and advancement.
Shakespeare’s 1596/98 play, The Merchant of Venice, conveys

an apt sense of the business twists and turns and the
erceness of negotiations during this period, centering on a
loan deal gone bad between a wealthy Venetian merchant,
from whom the Jewish money-lender Shylock seeks to collect
his “pound of esh” under the terms of the agreement. In
this social and political climate, Nicolo Machiavelli wrote The
Prince around 1512, which would become one of the most
important texts relevant and apocryphal to the nature of
negotiation practice to the present day. His writing o ered a
foundation for the discussion of leadership, decision-making,
and the exercise of power in every century thereafter. The
phrase most notably associated with Machiavelli is, “the ends
justi es the means.” His name since then has alternatively
been reviled as a cynical, opportunistic, political realist,
willing to act without scruples, or as a civic humanist, merely
seeking to teach people to recognize the deceptions behind
good appearances in order to be on guard and prepared.
This tension between reason and honesty on one hand, and
the necessity for strategy, games and deceptions in politics,
business, and life, remains as vital and relevant today as it
was 500 years ago, and even frames the discussion of the
role and ethical duties of negotiators and mediators in the

present day.
Machiavelli’s work also contributed to the ambivalence many

people had then and still have today about negotiation.
During, this time, deal making would be alternatively viewed,
on one hand as a multi-dimensional and complex art form,
and, on the other hand as a sleazy back room a air.
Notwithstanding the varying interpretations of Machiavelli’s
motives and purposes, however, his treatise marks the
historical point in time when conscious and intentional
strategic planning became an important, if not essential,
component of negotiative behavior and practice. Since then,
serious negotiators and mediators have paid close attention
to the study of the con ict terrain, including an assessment
of possible alliances, sources of resistance, available
resources, the surrounding politics of a dispute, and have
formulated approaches to the parties and circumstances that
might be most likely to bring about an agreement. While he
wrote about political con ict and management, the
discussion is directly relevant to every dispute context
regardless of the substance matter.
Machiavelli is the e ective progenitor of the strategic

negotiation approach, bringing to the fore the necessary
plotting and planning that must be done to bring to fruition
even the most noble ideas or policies. This involves the
necessary discussion of the intentional use of deception as a
tactic: when is it appropriate and how much? While the use
of too much deception can contaminate the proceedings and
breed distrust, encouraging the consideration of di erent
ideas often requires a theatrical presentation. Reason,
logical persuasion are seldom enough. This remains a
troublesome issue for many negotiation and mediation
practitioners to this day. The “truth,” if there is one, is not
only the rst casualty of war, but also a casualty of
negotiation and mediation. The quest for the truth of a
matter in dispute is often incompatible with the pursuit for a
pragmatic, interim workable agreement. While di cult for
many to understand, negotiators must come to terms with
the realization that the perfect and “right” solution to an
issue cannot be allowed to become the enemy of an
adequate one. Especially in Western culture, “the intellectual
and moral traditions have been shaped by an explicit and
consistent fear of deception.” Truth and certainty are valued
and juxtaposed with deception and falsehoods which are
aligned with evil. (Rue, Loyal, By the Grace of Guile: The Role
of Deception in Natural History and Human A airs, 1994;
Benjamin, R.D., “Managing The Natural Energy of Con ict:
Tricksters, Mediators and the Constructive Uses of

Deception,” in Bringing Peace Into the Room, Bowling, D. and
Ho man, D. eds., 2004)
All animal species, including human beings, engage in forms

of deception to survive and procreate. The more complex the
society, the greater the need for deception---both the self-
deception of ourselves and the deception of others. In fact,
as Robert Trivers, a noted evolutionary psychologist
observed, “to e ectively deceive others, requires rst
deceiving ourselves.” (Trivers, Robert, The Folly of Fools: The
Logic of Deceit and Self-Deception in Human Life, 2011) This
is nowhere more apparent than in negotiation and mediation
of a con ict where the parties’ di ering narratives of the
dispute must be script edited so as to integrate and
acknowledge the often widely divergent and contradictory
stories of each participant, while holding tenuously to some
recognizable strand of reality. At the same time, for a
mediator or negotiator to be overly manipulative or
deceptive risks breaching the trust of the other party or
participants and losing credibility. While recognizing there is
no avoiding the necessity for the use of some deception,
therefore, never use more than is necessary.
3. Early Modern Rationalist Negotiation
As a result of the Scienti c Revolution of the 17th Century

and the subsequent Enlightenment of the 18th Century, how
people in the Western cultures viewed the world around
them shifted dramatically. And, while this shift originated in
the study of physical phenomena, it was rapidly extended to
the study of politics, society, and therein, con ict. The quest
for the truth, previously pursued by and through religious
faith, was supplanted by a faith in reason, and now began to
be pursued by and through rational thinking. Negotiative
behavior and practice came to be viewed as a rational
enterprise.
Rene’ Descartes, a French mathematician and philosopher,

was one of the earliest purveyors of rationalism. His famous
dictum, “cogito ergo sum,” “I think therefore I am,”
emphasizes the importance and the superior value of
objective knowledge, as opposed to the subjective knowing
of how the world works. Within a hundred years, in 1687,
Issac Newton would con rm this paradigm shift in his
monograph, The Principia, providing mathematical formulas
for the precise and predictable measure of principles of
mechanics, gravitation and motion. In subsequent centuries,
Newton’s formulations have led many to believe there are
similar immutable laws of nature that extend beyond

physical phenomena and apply to human behavior and
interactions as well. All that remains is to discover those
principles and apply them. To apply principles of reason to
society would be the work of Voltaire and other philosophers
of the Enlightenment.
The collective power of their work gave rise to the Myths of

Truth and Rationality, which still undergird Western Culture
to this day. As Isaiah Berlin, the noted 20th Century historian
and philosopher observed, there are three premises, not
necessarily true, but which are widely accepted as
fundamental to the Western canon of thought: 1) for every
problem or question, there is right and truthful answer; 2)
that right answer is discoverable; and, 3) there is only one
truth. (Berlin, I., ed. H. Hardy, The Crooked Timber of
Humanity, 1998; Benjamin, R.D., “The Physics of Mediation:
Re ections of Scienti c Theory in Mediation Practice,” 1990)
As myths, they are not lies per se, but rather, stories of
signi cance people use to make sense of the world around
them. Many came to believe that con icts could easily be
resolved by the power of reasoned thinking and discussion.
At roughly the same time during the 18th Century many of

the European Nations began to emerge and moved through
a rapid succession of alliances, wars, and treaties.
Negotiative processes became bureaucratized in the form of
diplomacy. In contrast to Machiavelli, a century earlier,
Francois de Callieres, an envoy of Louis the XIV, wrote On the
Manner of Negotiating With Princes, in 1716, e ectively
applying the thinking of the Enlightenment to negotiation
practice. His reasoned approach stressed the importance of
integrity and relationship in diplomatic a airs.
Notwithstanding his aspirations for the more reasoned
practice of negotiation, however, the primal and strategic
negotiative forms necessarily remained. In fact, the rivalries,
politics, and wars between emerging European nations, each
vying for dominance, was a display of power negotiation. By
the mid 19th Century, the compelling Prussian Chancellor,
Otto von Bismarck, would be actively using Realpolitik tactics
to coalesce the Prussian state. To the extent this form of
political realism presumed to be a calculating, purely
pragmatic, and rational approach to controlling events it was
a product of the Enlightenment. And, at least not unwilling to
appear humanistic and liberal---some would say deceptively--
- when such an appearance served the purpose of obtaining
an objective.
Toward the end of the 19th Century into the early 20th
Century, after the debacle of World War I, there were some
e orts to apply reason to statecraft. President Woodrow
Wilson sought to devise a League of Nations, albeit
unsuccessfully, as a forum where nations could come and
reason together as part of his pursuit make that war “the war
to end all Wars.” In the same vein, 20 years later, in 1938,
British Prime Minister Neville Chamberlain sought to
negotiate the Munich Agreement---known by some as the
Munich Betrayal---with German Chancellor Adolf Hitler, to
head o World War II in pursuit of “peace in our time.” Both
brought to bear the rationalist principles of Enlightenment
believing the resolution of reason merely required the
application of reason to resolve con ict. Wilson was
rewarded for his e orts by being cast as a naïve ideologue,
and Chamberlain’s name became synonymous with
appeasement. <
Current day negotiative practice and teaching has drawn

heavily from the culture of science and Enlightenment
thinking. The belief in Rational Decision Making Theory
remains prevalent; many practitioners still presume people
to be rational actors who, if given the opportunity, will
predictably make decisions out of their calculated self-
interest. Many of the terms used to describe negotiation and
mediation practitioners and practice are quasi scienti c in
origin. The mediator, for example, is referred to as a
“neutral,” “impartial” and “objective” third party, and
practitioners think of themselves as “analytical” “problem
solvers.” The language is not necessarily inappropriate, but it
is revealing of an e ort to present and cloak negotiation and
mediation practice under the mantle of being a rational and
scienti c endeavor.
The rationalist thinking frame has, without question, given

negotiative processes a useful and powerful model of
practice that has brought a good measure of legitimacy to
the con ict management eld---although the term “ eld” is
used loosely, intending to describe those who actively try to
manage con ict, rather than a clearly de ned and distinct
professional discipline. This same rationalist paradigm,
however, has also been problematic for the acceptance of
negotiation and mediation by the general public and many
professionals. This is because being rational is not
necessarily the same as being pragmatic and sensible. While
it may be sensible to settle a dispute, the process used to
negotiate and the resulting agreement may well defy reason
and logic. Further, for many inveterate rationalists who
believe there is a correct answer to a problem or a proper
resolution for a complex issue, negotiation or mediation

seems unnecessary, or worse, obligates an unjusti ed
compromise and denial of facts. In short, participation in
negotiation is viewed as a derogation of the truth.
4. Modern Techno-Rational Negotiation
In the mid 20th Century, after World War II in the wake of

Hiroshima and Nagasaki under the threat of a nuclear World
War III, the principles of the earlier rationalist negotiation
approach were studied with renewed vigor and intensity. The
classic lm, Dr. Strangelove (1964), starring Peter Sellers as a
deranged German scientist who accidentally-on-purpose
starts a nuclear war, captured the mood of the time. The
nuclear threat congealed into the geo-politics of the Cold War
that pre-occupied much of the world as either players or
pawns, between 1949 and 1989. There is no question but
that it was fertile terrain for those interested in negotiative
processes; people suddenly became serious about exploring
alternatives.
Negotiation began to be approached as science. The process

was e ectively militarized and industrialized. Game theory
and computer modeling were wed to the study of negotiation
and warfare strategy. Academic and military think tanks, one
of earliest of which was the Rand Corporation in 1948, were
formed to study, among other things, war and negotiative
strategies. They postulated the doctrine of Mutually Assured
Destruction (MAD), perhaps the ultimate re nement of the
primal negotiation tactic of the ultimatum. Those nations
with nuclear arms clearly have the bargaining advantage
against those who do not and are in a position of power
better able to make demands and set terms for others. And,
against others similarly armed, to counter any threat with
equal force.
In this atmosphere, Howard Rai a and Robert Axelrod, two

of the most compelling early theorists in the con ict
management eld, began in earnest to examine the science
of negotiation and used game theory to model the rational-
choice paradigm. The Prisoners' Dilemma exercise, which
purports to demonstrate the proposition that people will
predictably make a reasoned choice to cooperate rather than
compete with one another, if given the opportunity, was
developed in this period, and is still widely taught. (Rai a,
Howard, The Art and Science of Negotiation, 1982; Axelrod,
Robert, The Evolution of Cooperation, 1984) It is important to
note, however, some years later Axelrod observed the limits
of modeling noting that people tend to be more adaptive
rather than rational in their decision making. He concluded

that, “(a)lthough people may try to be rational, they can
rarely meet the requirements of information or foresight that
rational models impose.” (Axelrod, Robert, The Complexity of
Cooperation, 1997)
This post war attention to con ict management, negotiation

and mediation, trickled down from the macro level of Cold
War geo-politics to be applied to community con icts in the
wake of the civil unrest and civil rights movement of the
1960’s and into the early 1970’s. By the late 1970’s, these new
negotiative approaches began to seep into the legal system
in the management of divorce and family matters. By the
late 1980’s and early 1990’s, mediation came to be
increasingly used by the courts for business and commercial
disputes. The courts, judges, lawyers, and academics were
initially skeptical, and sometimes downright hostile, to
alternative dispute resolution processes, and concerns
persist in some quarters. The commonly expressed
reservation is that more informal modes of dispute
resolution would undermine and supplant the role of the
legal system and compromise the rights of minorities, by
creating a “second class” justice system. (Grillo,Trina, “The
Mediation Alternative: Process Dangers for Women,” Yale
Law Journal, 1991; Merry, Sally Engle, and Milner, Neal, eds.,
The Possibility of Popular Justice, 1995) Over the course of
the last 20 years the legal landscape has changed
signi cantly with mediation and negotiation being far more
prominent in law school curricula and practice.
The second half of the 20th Century was socially, politically,

and technologically, volatile and negotiative processes
became more necessary than ever to manage the
accompanying stresses. Internationally, the geo-politics of
the Cold War seemed to be continuously threatening, while
the domestic a airs of many countries were occupied by
popular movements for civil rights. In the United States
there was a dramatic shift from the staid Eisenhower years of
the 1950’s into the “New Frontier” and “Great Society” of the
Kennedy and Johnson era, all of which had a signi cant
impact on family relationships, business relationships, and
the workplace. During this relatively short time frame, in
historical terms, there has been a veritable revolution in the
nature of marriage and the family, and gender roles in
families and in the workplace are more uid than ever.
(Coontz, Stephanie, The Way We Never Were, 2000, and The
Way We Really Are, 1997)<
This laid the foundation for the popularization of negotiation.

Harvard professors, Roger Fisher and William Ury, introduced
the principled, interest-based model of negotiation in a book
that has become the primer in the con ict management eld,
Getting to Yes (1981). Fisher’s background included the
design of the negotiation process for U.S. President Jimmy
Carter’s successful Camp David Accords, bringing about the
historic peace treaty in the Middle East, between Egyptian
President Anwar Sadat and Israeli Prime Minister Menachem
Begin in 1978. Fisher came from the diplomatic corps, having
worked on the formulation of the Marshall Plan after World
War II, and followed in the tradition of Woodrow Wilson and
De Callieres, dedicated to the belief in civil discourse.
While a slim volume, however, Getting to Yes coherently

packaged the same rationalist model of negotiation for use in
any dispute context, from an international geo-political
matter, to a business or divorce con ict. By so doing, they
e ectively re-invented the negotiative process, making it over
into an intellectually honest and principled activity based on
reason and rational choice. This cleansing, however, required
the minimization of the history of negotiative processes and
the distancing of their model from the traditional notions of
negotiation that had grown up in earlier centuries. The
pejorative reputation of negotiation as a manipulative,
deceptive and dubious activity, had to be disavowed.
From Fisher’s rendering, the role of a negotiator or mediator

is fashioned as one with the calm, dispassionate demeanor
associated with an eminently reasonable person. The role of
the negotiator, and even more so, a third party mediator, is
to be an “objective, neutral and impartial” party---not unlike a
judge, except that the mediator does not render judgments--
-, who methodically frames the con ict and “separates the
people from the problem.” The emotion of the dispute,
while acknowledged, is moderated and minimized as much
as possible in favor of reasoned analysis and discussion to
solve the problem at hand. For many, the confusion between
the role of a mediator and a judge, or between arbitration
and mediation, persists in part because the description of
mediators as objective neutrals is so close akin to that of a
judge or arbitrator. Nevertheless, for the rst time in
history, the formal practice of con ict management and
mediation began to emerge as a distinct career Professional
organizations began to form and actively promulgate
standards of practice as is to be expected in a ‘techno-
rational’ culture. Mediators and ombudspersons sought to
be granted the mantle of technical experts in con ict
management.
Drawing from the scienti c tradition, represented themselves

as neutral, objective, dispassionate professionals who were
disciplined to stay “above the fray” with no interest in the
dispute outcome. (Schon, D., The Re ective Practitioner,
1983; Benjamin, R.D., “The Risks of Neutrality: Reconsidering
the Term and Concept,” Mediate.com, 1998) With this
structuring of mediation and negotiation in the modern
rationalist tradition, the formal practice became more
respectable and acceptable as an acknowledged part of, and
complement to, the legal system. In addition, mediation
and negotiation, having become a rational enterprise
seemingly susceptible to study and evaluation, could also be
included in the academic curriculums of law and other allied
disciplines.
Negotiative approaches to con ict have become so alluring

that many practitioners and theorists now consider
negotiative practice as an ideological belief system in its own
right. For them, mediation and negotiation are not merely
pragmatic means of managing con icts, the processes are
ends in themselves. Engaging con ict o ers an opportunity,
and negotiation a means, to transform personal
relationships, the functioning of society and, quite possibly,
human nature itself. And, in the social and political spheres, a
reasoned civil dialogue is commonly advanced as an
enlightened form of self-governance. It is the foundation of
the deliberative democratic process whereby people can
participate in a planning process for their own welfare and in
the pursuit of social justice and peace in the world. (Elster,
Jon, Deliberative Democracy, 1998; Forester, John, The
Deliberative Practitioner, 2001) Similarly, the practice of
“transformative” mediation is less directly about the resolving
the particular con ict at hand, than it is an opportunity to
change the nature of the interaction between the
participants. The model focuses as much, or more, on the
therapeutic purpose of the dialogue as it does on pragmatic
management of the dispute. The outcome is of lesser
importance than the resulting “empowerment and
acknowledgement” that might be gained by each of the
parties of the others involved. (Bush, R. and Folger, J., The
Promise of Mediation, 1994) Sometimes there is a religious
overtone. John Paul Lederach, a Mennonite, actively pursues
peace building, and employs negotiative strategies to engage
people in con icts throughout the world in an attempt to
transcend the cycle of violence and pursue peace-building.
(Lederach, J.P., The Moral Imagination, 2005)
The structuring of the mediation process prepared it to

become institutionalized and legitimated as a regular part of
the legal landscape beginning in the divorce context in the

mid 1970’s. With increased societal mobility there was an
increase in the number of people seeking divorce and forced
to confront an outdated, fragmented and formalistic legal
system that was glaringly ill suited and cumbersome. Not
surprisingly, this social phenomenon began in California,
which was among the rst in the country, and the world for
that matter, to formally include marriage conciliation and
mediation as court services. Shortly thereafter, a private
market for divorce mediation emerged throughout the
country, based on the work of O.J. Coogler, an Atlanta lawyer,
who structured the mediation process so that it could be
replicated and taught, together with the substantial
contributions of John Haynes, a Professor at the School of
Social Welfare at the State University of New York at Stony
Brook. (Coogler, O.J., Structured Mediation in Divorce
Settlement, 1978; and Haynes, J., Divorce Mediation, 1981).
The structuring of the process allowed it to spread
nationwide and abroad by the end of the 1980’s. This
development of a mediation structure and format allowed
the process to be applied and adapted beyond divorce and
family matters to many other dispute contexts and the core
of the model remains in use.
Since that time, the mediation process, in varying forms, has

been institutionalized, made a part of the legal system, and
actively used to remediate and compensate people injured
by every variety of natural disaster and class action legal
claim. Mediative processes have been used to settle class
action claims, large scale property damage claims, requests
for special educational services, and most recently, the
resolution of home mortgage foreclosures in state mediation
programs nationwide. As discussed above, the
institutionalization of the mediation process, while clearly
necessary, is not without valid concerns to the quality of the
process.
The rationalist approach has provided negotiation and

mediation practitioners with a powerful thinking frame that
has signi cantly advanced con ict management practice. At
the same time, in recent years especially, the su ciency of
the rationalist framing has been called into question. Studies
in neuroscience and cognitive psychology have compelled a
re-examination of the working assumption that people ---
especially in con ict situations---are rational actors. Evidence
is mounting that the thinking of most people, including the
professionals and mediators involved and trying to manage
the matter, are “predictably irrational” in their decision-
making and judgments.
5. Post-Modern “Rationally-Irrational” Negotiation
The present day con icts and issues are more complex and
level of antagonism between people more strident than at
any time in recent memory for three reasons: 1.) many of
those issues present “wicked problems” that “…are di cult or
impossible to solve because of incomplete, contradictory,
and changing requirements that are often di cult to
recognize…” and often harbor unintended consequences;
2.) both the experts and people in general feel a loss of
control; and 3.) people are more becoming more aware that
reason and rational problem solving methodologies, as they
have traditionally been applied, are insu cient. (Rittel,
Horst, and Webber, Melvin, “Dilemmas in a General Theory of
Planning,” 4 Policy Sciences 155-169, 1973; Wikepedia
Overview; Kahneman, Daniel and Tversky, Amos, Choices,
Values and Frames, 2000, The scarcity of resources, climate
change, and faltering economies, are just some of the most
apparent macro issues of this kind, but there are aspects of
wicked problems in many community, healthcare and
interpersonal disputes as well. (Tenner, Edward, Why Things
Bite Back:Technology and the Revenge of Unintended
Consequences, 1996, Taleb, Nassim N., Fooled By
Randomness: The Hidden Role of Chance in Life and in the
Markets, 2005; Berwick, Donald, Escape Fire: Designs For the
Future of Healthcare, 2004) As with all issues, and especially
complex ones, the level of stridency is made more intense by
communication breakdowns. While the internet has
dramatically increased the technology of communication, it
has also become a source of miscommunication by the
reductionist oversimpli cation and fragmentation of multi-
variate issues. Before the advent of Chaos Theory, “Fuzzy
Logic,” and Quantum Theory, as a culture we had allowed
ourselves to believe that any issue could be solved by science
and technology; there was comfort in the notion that the
principles of certainty and predictably were intact. Since
then, we have been collectively shaken by the realization that
there are often multiple possibilities in outcome over which
humans have limited control and about which there is
frequently little agreement about how to proceed. In short,
while Issac Newton o ered precise formulas for the
calculation of predictable and certain outcomes of
observable events, like the rate of fall of an apple from a tree,
the behavior of subatomic particles refuse to follow those
laws of nature, once thought to be ironclad and certain. The
complex issues of the present day tend to follow the more
chaotic patterns of subatomic particles rather than falling
apples. There is no precise formula available by which to
solve wicked problems and, importantly, we cannot expect to
necessarily think, or reason, our way out of such complex

di culties.
This social, political, and economic environment requires a

di erent approach to negotiation and mediation. While
negotiative processes are well suited to manage the
complexity of these issues and allow for a more creative,
exible, and direct monitoring of decision making, the
approach, strategies and techniques of negotiation and
mediation will also have to shift and adapting to this new
environment. The rationalist model, while still useful, is no
longer su cient for three reasons:
First, practitioners, and people in general, are slowly

becoming aware that most con icts are systemic in
nature and that any potential approach to management
must also be systemic. Few issues can be managed
simply as just a legal, business, political, or personal
matter. They must be addressed holistically.
Second, most disputes involve multiple parties with
widely divergent interests. Rarely will there be an
elegant solution that everyone accepts.
Third, studies in neuroscience and cognitive psychology
have made clear that few human beings are the
“rational actors” they have been presumed to be. They
are, in fact, “predictably irrational” in their decision-
making and judgment. As well, the functioning of the
human brain is messy with a bias toward lazy and
habitual thinking that is di cult to overcome.
Neuroscientists, of course, did not study con ict per se, only
how the human brain appeared to function when presented
with emotional circumstances such as the stress of con ict.
For their part, con ict management practitioners have only
begun to apply some of the understandings resulting from
neurobiology and cognitive psychology to practice in the last
5 years. The predilection for the rationalist approach remains
strong and there continues to be a resistance to accepting
the inextricable connection and integration of the cognitive
and subjective functioning of the human brain. Emotionally-
based processes have always been suspect in a Western
culture dedicated to reason and rational thinking and such
studies traditionally been relegated to the province of moral
philosophy, which would become the discipline of psychology
only toward the end of the 19th Century.
In the early 1970’s, however, with the technological

development of actual brain imaging techniques, such as
Magnetic Resonance Imaging (MRI), and later the Function
Magnetic Resonance Imaging, which records the brain in

operation, neuroscientists were able to produce high quality
images of localized brain activity in direct response to
stimuli. Their ability to study not just the functioning of the
human brain in general, but the emotional processes in
particular, was enhanced signi cantly. Prior to this time, as
Joseph LeDoux, a noted neuroscientist observed, emotions
were viewed as “… just too complex to track down in the
brain.” Up until then, the focus of inquiry had been
essentially limited to the cognitive processes. This bought
about the admittedly late “recognition that the mind is more
than cognition…,” and the realization that subjective states of
awareness also had to be, and could be, objectively studied if
cognition is to be properly understood. (LeDoux, J., The
Emotional Brain,1996; Purves, et al, Principles of Cognitive
Neuroscience, 2008)
One such neuroscientist of note is Antonio Damasio. From

his considerable research, he concluded that there is no such
thing as the “cool headed reasoner” of myth and lore. The
human brain is not neatly divided into di erent parts, one
being the analytic and rational, and the other being the
creative, emotional, and intuitive. (Damasio, Antonio,
Descartes’ Error: Emotion, Reason, and the Human Brain,
1994) No decision is purely objective. There is always an
inextricable emotional component to the functioning of the
human brain. There have been strong suspicions of this
close and continuous interplay of reason and emotion over
the centuries. In the 17th Century, although cast as
rationalist philosopher, Baruch Spinoza, challenged the
Cartesian mind-body dualism that gave a higher order status
to the human rational mind over the a ective bodily senses
and many philosophers and psychologists have since argued
for a more holistic view. However, it has taken until
e ectively the present day for studies in neuroscience to
con rm those suspicions. (Damasio, Antonio, Looking For
Spinoza: Joy, Sorrow, and the Feeling Brain, 2003) This forces
a re-thinking of the concept of rationality, which can no
longer be narrowly limited to assertions that are provable,
measureable, and objective. The de nition of rational will
need to be expanded to include irrational thinking.
Sometimes irrational acts are, in fact, appropriate and
rational and being too rational in certain circumstances can
be irrational. This is nowhere more evident than in the
practice negotiation and mediation.
Complementing the neuro-scienti c work, cognitive

psychologists have challenged the rational model of human
judgment and decision-making. Daniel Kahneman, a Nobel
Laureate in Economics, and his principal collaborator, Amos

Tversky, along with others since, have demonstrated the
numerous heuristic biases, or shorthand “rules of thumb,”
people typically use in their day-to-day decisions. Not just
sometimes, but regularly, they are as likely to be as wrong as
they are right. Such judgments, in e ect, are “predictably
irrational.” No one escapes this inbred condition of brain
functioning, not even scientists, lawyers, doctors or
mediators, notwithstanding their professed claims and
promise to be neutral, impartial and objective. Every one of
us operates with a selective and imperfect memory, tends to
be unjusti ably overcon dent in our abilities and our truth of
our beliefs, and tend to overlook our misperceptions. This
reliance on intuitive judgments, while easier, frequently
causes people to make systematic errors in judgment and
prediction. (Kahneman, Daniel, Thinking Fast and Slow, 2011)
While not directly addressing negotiative behavior in

Thinking Fast and Slow, Kahneman o ers an especially useful
and realistic frame from which to understand how
negotiation and mediation should be approached. Not only
does it compel negotiators and mediators to re ect on their
own working assumptions, such as their presumption of
neutrality, but it also provides an important frame for
understanding the decision making process of people in
con ict. Appreciating the ongoing interplay and tension in
decision-making between peoples’ intuitive, shorthand ways
of thinking and their more ‘e ortful’ and analytical thinking
frames, allows for the emergence of a new Post Modern
approach to negotiative behavior. Kahneman’s Thinking Fast
and Slow does not presume that being aware of the built-in
“predictable irrationality” that is part of human decision
making can be remedied, altered and so as to make people
more rational, but that being mindful that is is a signi cant
part of our thinking can be anticipated, sometimes
countered, or even used to advantage, and possibly
somewhat neutralized. At the very least, Kahneman o ers an
alternative platform from which to engage con ict that does
not rely entirely on the use of reason, logic and persuasion
and the presumptions of Rational Decision Making Theory.
Most people in a dispute, not wanting to lose face and often

feeling threatened are prone to spin the story to their
advantage, or even outright lie. They will posture theatrically,
making demands and issuing ultimatums that border on
irrational. Such games are commonly discounted and
dismissed as irrelevant. They may, however, have some value
and, from an evolutionary perspective, some relevant
purpose. Entertaining that behavior, in a managed way, may
allow a workable agreement to emerge more quickly. Being

too quick to move to what appears to be a logical and
workable agreement, based on what appears rational and
reasonable, may be counter-productive. Given that the
primary purpose of negotiation is to reach an agreement,
being too focused on being rational would be irrational.
Reason and logic, although they are the most common
techniques suggested and taught to counter “irrational”
thinking, are some of the least e ective. Most experienced
mediators and negotiators have concocted their own secret
tricks that use forms of “crazy wisdom.” Through the
centuries, many non-traditional, counter-intuitive, and
sometimes non-rational tactics for nudging people towards
agreement when reason fails, have been developed. Such
tactics and strategies should not be lost because they do not
neatly t into an approved style or model of practice.
Much of the structuring, and many of the strategies and

techniques of the rationalist approach to negotiation and
mediation are slowly being reconsidered in light of
neuroscience and cognitive psychology. For example,
following the familiar legal structure, many mediations begin
with each party presenting an opening statements of their
position. While this follows the rationalist approach, this
model encourages posturing and tends to solidify the parties
in their positions. The result is a “rational” tactic that leads
away from agreement and is, therefore, e ectively irrational.
The post-modern approach o ers a more calculated
technique for managing the discussion that does not force
the parties into a pre-set rigid structure.
Likewise, the paradoxical injunction is a non-linear

communication device. Instead of directly challenging a
party’s logic for a position or action, a negotiator or mediator
might authentically agree with their decision and encourage
them to proceed to do what they say they want to do. This
can often release the party from the need to take the action
they claim is necessary. For example, suggesting to someone
resistant to negotiation that they may well be right and that
this process may not be well suited for them to resolve a
dispute can allow them to mediate. By contrast, rationally
explaining the bene ts of the process often elicits a rebuttal
and serves to reinforce their resistance.
Traditionally, in the rationalist frame, impasse is not good

and to be avoided. Turning that working assumption on it’s
head, a rationally irrational mediator approaches, and
sometimes might even encourage impasse; an impasse can
o er a creative opportunity for problem solving.
Neuroscience suggests that after the frustration of an

impasse, people tend to relax allowing other options to come
to mind. (Benjamin, R.D., “The Joy of Impasse: The
Neuroscience of Insight and Creative Problem Solving,” 2009)
Conclusion
The understanding of negotiative behavior is being stymied

by a lack of awareness of the evolution of those behaviors
and their natural history. Assuming the practice of
negotiation has e ectively begun in the last 50 years
seriously compromises the dynamic development of
negotiation that has preceded practice in the present day,
and continues to directly in uence that practice. The way
people negotiate and mediate con icts re ects strategies
and techniques that have been cultivated over many
centuries. Too often, past tactics are simply dismissed as
primitive and outmoded, and yet they continue to be
displayed with regularity. Their ongoing use suggests a
continued evolutionary purpose and relevance. Few
strategies and techniques have gone extinct just because a
new practice style or approach has been announced.
There is no way to be pro cient as a practitioner without

being mindful of the sweep of history and past negotiation
strategies and techniques. Being aware of how negotiation
approaches and strategies might plausibly be associated with
certain historical periods, social, political, economic and
scienti c developments, conveys the dynamism of an
evolutionary process that impacts present day practice. The
study of the natural history con rms that negotiation will
almost always include an element of survival and the fear
and ambivalence of being played for a fool. It is not an easy
process to engage. Negotiation, done well, also requires
strategic thinking, a measure of deception and the necessity
of game playing.
And, nally, there is no minimizing the importance of

carefully assessment and analysis of the con ict terrain and
methodical consideration of available options. Future
negotiators and mediators will also be obligated to learn how
to anticipate and take into account their own and other
parties’ heuristic biases and “predictable irrationalities.” This
emerging post modern approach to negotiation has the
potential to integrate the strengths of all of the previous
negotiative forms and approaches into a more systemic
conceptual framework that is more realistically suited to deal
with the complexity of modern day con icts.
Biography
Robert Benjamin, M.S.W., J.D., has been a practicing mediator

since 1979, working in most dispute contexts including:
business/civil, family/divorce, employment, and health care.
A lawyer and social worker by training, he practiced law for
over 25 years and now teaches and presents professional
negotiation, mediation, and con ict management seminars
and training courses nationally and internationally. He is a
standing Adjunct Professor at the Straus Institute for Con ict
Resolution of the Pepperdine University School of Law, at
Southern Methodist University’s Program on Con ict
Resolution and in several other schools and universities. He
is a past President of the Academy of Family Mediators, a
Practitioner Member of the Association for Con ict
Resolution, and the American Bar Association’s Section on
Dispute Resolution. He is the author of numerous book
contributions and articles, including “The Mediator As
Trickster,” “Guerilla Negotiation,” and “The Beauty of Con ict,”
and is a Senior Editor and regular columnist for Mediate.com.
Email Author
Author Website
Additional articles by Robert Benjamin

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Also from process, however, the history of

Coordinators history limits the future development of new negotiative

Despite the Necessity, Most People Do Not Like to

Despite the necessity to negotiate, and that it is a eminently

by a centuries old, deeply ingrained resistance to such

There are Four Primary Sources of Resistance to

Biologically, the human brain is not the neatly ordered

Psychologically, a person in con ict must overcome their

where each side will unabashedly predict victory and

In most controversies or con icts the people and

Finally, many people are psychologically reluctant to take the

people have learned to negotiate, “by the seat of their pants”

Culturally, especially in dominant cultures with a strong

Negotiation is considered by many to be not just a sign of

With this framing of negotiation, it is easy to understand how

position and refuse to negotiate on any matter where

The suspicion of negotiative processes often extends to

In the same fashion, while mediators and negotiators view

memory tends to be; reinterpretations of history are more

Lawyers, politicians, and diplomats have drawn a

The ambivalence and suspicion of negotiative processes has

The deeply ingrained historic resistance and ambivalence

“Style Wars” and the Risks of Practice Orthodoxy

The awareness of the natural history of negotiative processes

advent of the modern rationalist approach to negotiation,

Roger Fisher and William Ury, two Harvard Professors, wrote

Fisher and Ury, began the process of re-inventing negotiation

This modern re-shaping carries with it the active suggestion

approaches suggests each may well have a current value,

There is an ongoing tension between the more traditional

Each practice style claims to meet special needs and

The substantive dispute contexts that in uence style can be

The practitioners’ professions or disciplines of origin often

For many, the practice of con ict mediation and negotiation

con ict as an opportunity for relationship transformation,

None of the style forms are wrong or misguided, and many

Not surprisingly, all of the prevalent present day styles and

Lawyers and business people, for example, are prone to

They assume the predominant source of con ict to be

Negotiation or mediation practiced by those practitioners

Each of these styles re ect, alternatively, the weight and

background and training of the practitioner. As a result,

The choice of style is also in uenced by marketing

The institutionalization of negotiation and mediation practice

The ideal of a third party having the range of motion to

The risk of practice style orthodoxy.

The advocates for each model or style of practice form tend

need for special training and expertise, and seek to

The study of natural history of negotiation provides an

The human instinct to cooperate, to survive and thrive as a

The Evolution of Negotiation and Mediation Approaches

There have been ve discernible approaches to negotiative

In each negotiation period, the purposes served, how people

In early history, especially in the absence of any semblance of

evidence, although rudimentary in form, not too many steps

Contrary to popular thinking, war and negotiation are not