What if they hold all the cards?

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At times one of the parties involved in mediation may be unwilling to play nicely.  They may hold on to their positional bargaining or use unfair tactics to gain an advantage in negotiating.  When the other party chooses to hold on to their position, the authors of Getting to Yes: Negotiating Without Giving In suggest there are three options for changing the tone of the mediation. 
 
First, keep using the strategies suggested in the Harvard Negotiation Projects, as previously discussed.  This method of separating the people from the problem, focusing on interests, inventing options for mutual gain, and using objective criteria holds onto the prospect of healing and reconciliation.  Hopefully, by holding on to your superior way of playing the game, the entire game will be changed for the better.
 
If this strategy is unsuccessful the next option to try is “negotiation jujitsu”.  The first step is to avoid being sucked into the other party’s way of playing the game.  When they state their position, don’t attack it. Similarly, don’t defend your position when they attack you.  This avoids the attack/defend deadlock that results from positional bargaining. 
 
Rather than arguing, look behind their position to identify their interests.  Help the other party to identify the principles they are basing their position on. Invite criticism and advice about your ideas. This step can both identify their interests as well as invent options for mutual gain. Finally, redirect their attacks on you as attacks on the problem. Listen, understand, and ask questions to find shared areas of interest.
 
If both strategies are unsuccessful, a third party, such as a trained mediator will be necessary.  This third party operates under the one-text procedure. The mediator can view the situation objectively and more easily employ principled negotiation. They ask questions to identify each party’s interests, without forcing either party to give up their position.  The third party uses these suggestions to create a draft of an agreement.  The parties then critique the agreement, rather than positions or each other.  Eventually, creating an agreement that is amenable to both parties. 

Charlyn Pelter