James R. Holbrook serves on the American Arbitration Association’s roster of neutrals and is a Clinical Professor of negotiation and mediation at the S. J. Quinney College of Law at the University of Utah. Professor Holbrook holds a B.A. from Grinnell College, a M.A. from Indiana University, and a J.D. from the University of Utah. He is the co-author of Advanced Negotiation and Mediation: Concepts, Skills, and Exercises (West Academic Publishing, 2013).
USING PERFORMATIVE, DISTRIBUTIVE, INTEGRATIVE AND TRANSFORMATIVE NEGOTIATION PRINCIPLES IN MEDIATION
James R. Holbrook
I learned how to mediate in the mid-1980s by watching another lawyer mediate a personal injury lawsuit between an injured motorist and the insurer of the driver who caused the accident. His approach emphasized analytical and evaluative techniques to achieve a “distributive” outcome—i.e., a monetary settlement. Years later, I taught a law school mediation course with two adjunct professors. One, a businessman with a Harvard MBA, mediated using interest-based negotiation principles to seek an “integrative” solution. The other, a psychologist with a Buddhist perspective, mediated by focusing on the parties’ relationship and their patterns of communication, aiming for a “transformative” solution. I also have been working with a colleague, a professor of communication, developing a theory and identifying skill sets for negotiating high-conflict disputes which we call “performative” negotiation.
From these experiences I realized it is not necessary to debate which approach is best, because all four complement and overlap one another. This chapter discusses fundamental principles of negotiation and how performative, distributive, integrative and transformative principles can be used in a flexible way in mediation to resolve many different kinds of conflict.