By

Daniel Merz, Ph.D.

There are occasions in negotiation or mediation where a member of one party will use intimidation or in some instances bullying tactics to gain a power advantage. These tactics present difficult and emotionally challenging management moments for the negotiator. Although such tactics more often emerge in custody or divorce situations, they can also surface in business and corporate negotiation sessions. The abuse of power immediately imposes an imbalance on the process. 

What I am about to describe are a series of interventions that a negotiator can use to achieve a fair and equitable balance of power to the negotiation process. I want to begin by noting that there are a variety of variables that will influence the use and abuse of power. Among these are age, gender, race, knowledge, experience, position, and economic status. Each of these variables may influence the balance of power. Four skills may help you establish a power balance that can move the process forward.

First, is recognizing the importance and contribution of each party. Acknowledging the presence of each party can be a helpful way to open negotiations with an eye to combating the abuse of power. A mediator and good negotiator needs to be able to establish effective and respectful relationships with the parties involved. 

• At times the clients’ desire to settle can be used as a persuasive plea to end the use of power tactics. 
• At other times, firmly interrupting the party being abusive or intimidating can end the tactic.
• It is important to give the other parties time to speak and ask questions. 
• More than simply encouraging parties to speak, power balance can be enhanced by ensuring equal time to do so. For instance, a mediator might interrupt an aggressive and intimidating client and say, “Excuse me, I am curious about what the other client is wanting to convey or express at this moment”. 
• Whatever tactic is used, avoiding making quick judgments or assumptions that a party is using inappropriate negotiating behavior is also wise. 

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Second, a mediator and good negotiator needs to know where her or his “buttons” are. In other words, where are you emotionally vulnerable? When a client or other negotiator is bordering on being brutal or offensive, are you able to maintain eye contact, remain calm, appear focused even if you are a little shaky on the inside. Avoid permitting yourself to be intimidated by a bullying tactic. In preparation for an upcoming negotiation meeting, you may choose to practice mental rehearsal. This rehearsal involves creating mental images of yourself remaining calm, in control, and composed in the face of harsh or aggressive behavior. If you avoid getting derailed, it is likely that the abusive client will get flustered while you remain professional. 

Third, before tensions reach a breaking point, do not hesitate to invoke a time-out. This allows the adrenaline and cortical levels in the parties to dissipate and provides all the parties time to identify areas that have a chance of agreement. This approach, if successful, can model what it means to employ a reasonable and open-minded attitude in the negotiation process. It may also be useful to direct the exchange from statements of positions based on “what the parties want” to discussions “what is really important to them”

Finally, reliance on the use and abuse of power occurs when the parties are unsure of the process, worry that it is unfair, or perceive that they are weak. Participants in negotiation have the right to know that the process will be regulated and governed by ethical standards. These standards should include language that prevents abuse, exploitation, and the employment of coercive methods. Mediators should not hesitate to ensure that negotiation contracts include a set of ethical standards describing the ethical regulations that govern the mediation process.  All parties need to review and sign off on these before the formal negotiation begins. Examples of ethical regulations may include such simple standards as:

• Treat each other with respect
• Do not interrupt
• Refrain from using non-verbal behavior that will be perceived as threatening or hostile
• The mediator will remain impartial
• Participation is voluntary
• The process and outcome will be governed by procedural justice

Developing agreement on these types of simple rules at the beginning of the negotiation can help the parties clarify their process expectations and view the process as fair. This first step may also give the parties an opportunity to understand everybody’s interests and motivations. 

Other tactics are likely available to help the mediator or negotiator achieve or retain a balance of power in negotiation. By recognizing that maintaining a balance of power is an important ingredient for success, the negotiator or mediator will be able to use the appropriate skills at appropriate times during the process.