Critical review assignment

Critical review assignment

Module 2 Transcript:

Transcript: Mediation, Conciliation and Arbitration Part 1

In this topic, we have a look at the three main ways in which a third party, third party in the sense, that it's not any of the negotiation parties. How a third party can be involved in the negotiation process. And the third party can be involved during the negotiation itself, or it can be invited into the negotiation to overcome a deadlock or to help reach an agreement. Or alternatively, particularly with arbitration, the third party can be involved when there is a disagreement, or a misunderstanding, about the implementation, of the actual agreement.And if you recall that [INAUDIBLE], if you've had to look at in the earlier topics of the unit, has emphasized that the implementation of the negotiated agreement is just as important as the process of negotiation that made the agreement. So in this topic, we focus predominantly on third party involvement with the method of mediation. We touch on conciliation and arbitration so that we can have an understanding of how conciliation is similar to mediation, but how it is also different. And in the Australian context, conciliation is normally the process that happens before the parties move to arbitration, which is generally far more formal and something that the parties should try to avoid for a number of reasons.So just to clarify two terms are expressions that will be used in this topic. One is third party involvement and third party intervention. So when the expression third party involvement is used, that generally means that the third party is invited into the negotiation process by the negotiation parties. A third party intervention, on the other hand, generally means that the third party steps into the process because of some kind of regulation mandates the third party involvement. So as that first point of the slide indicates, that because third parties can be invited into the negotiation process, particularly with mediation, or they can be imposed on the parties, particularly with arbitration. Therefore, negotiators should be familiar with the different types of third party involvement-- mediation, conciliation, and arbitration.In the dispute settlement literature, third party involvement is generally described as this thing called alternative dispute resolution, or ADR. Now, it's called alternative because it's an alternative to taking the dispute, or the problem, to a court. So arbitration, in many ways, resembles a court. But it is not as formal and not as necessarily final as a court.As was discussed at the end of topic seven, in the Australian workplace context, the regulation, currently the Fair Work Act, has mandated a role for a third party in disputes about agreements, or disputes about rights or obligations of employers and employees in the workplace. And the third party involved here, or intervening here, depending on the circumstances, is the National Industrial Relations Tribunal, currently called the Fair Work Commission. So in every modern award, and in every collective agreement, and indeed in every individual agreement, if you have one, it must have a dispute settling close.And there is a model clause that's important to every agreement unless other words had the same intent. And the model clause gives a role for the Fair Work Commission both in the process of mediation and conciliation. And finally, if mediation or conciliation don't settle the dispute, by arbitration. And as that third dock point, or the last point on this slide suggests, or shows, that in arbitration, it's the third party that makes it a decision or determination that binds the parties.If a third party is to be involved in a negotiation dispute, or the implementation of an agreement dispute, the third parties should have a couple of characteristics which are highlighted in the first point. A key characteristic is that they must be disinterested in the dispute, or disinterested in the outcome of the dispute. Disinterest here doesn't mean that they are uninterested. They are highly interested because they are helping settle the dispute. Disinterest here means that they have no particular stake in the outcome. They have no particular stake or investment on how the dispute is settled.It's often helpful to have a third party involved in the dispute settlement process because they can generally help the parties settle the problem or overcome the impasse or overcome the deadlock because they can have different understandings or suggest things that the parties haven't considered previously. And another reason is that there are different ways in which a third party can be involved. And some of them are different ways to deal with the issue. And that can help clarify.Sp the different types of third party involvement, whether it's mediation, conciliation, or more formal process, arbitration, can help clarify the parties to identify what are the really important interests here that they want to maintain or that they want to retain? And what are those issues or interests that are lesser priorities? And having an understanding of that can help overcome an impartial deadlock and therefore settle the dispute. So there are a number of benefits and advantages of having a third party involved in a negotiation and dispute, which are highlighted in the second point of that slide. Inviting somebody else into the process, you can just calm the whole situation down. That's what breathing space is all about, or cooling off periods.And it introduces another means of communication between the parties. When emotions become inflamed, involving the third party can calm down the emotional state of the parties that are in dispute. When emotions between the negotiation parties become strained, it makes negotiation difficult. So involving a third party in the process can rehabilitate or repair the quality of the relationship that is there prior to the dispute or the deadlock. But having said that, there are some potential disadvantages or limitations of involving a third party, and they're highlighted in the third point of that slide.And some of these are perception rather than reality, such as some people might interpret inviting a third party into the process means that there is some deficiency in the capacity of either side to conduct negotiation. An important limitation of third party involvement in disputes is that there is a perception, and in some circumstances, the reality, that the parties themselves can lose control of the outcome. That's particularly with arbitration. As we saw before, in arbitration, the third party actually makes the decision how to overcome the dispute or deadlock. That doesn't necessarily happen, or doesn't happen, with mediation or arbitration. But it's the lack of control of the process that

Transcript: Mediation, Conciliation and Arbitration Part 2

So we move on now and have the first of the three methods in which a third party can be involved in dispute settlement. And that is mediation. As the first dot point in the slide suggests, mediation is something that's invited by the parties in dispute. So in a sense, rather than show a lack of maturity, you could interpret the decision to engage in mediation is showing high levels of maturity. In a sense that both parties realize, or all parties realize, that they need some assistance to help in overcoming their dispute. They're deadlocked.So with mediation, the third party is called a mediator, which is a pretty good description for the person who conducts mediation, or shapes the mediation process. So a key point then is mediation is that particularly the mediator that's invited into the process must be acceptable by all the parties. So they must be satisfied or comfortable with the mediator and that mediator, as we saw before, the mediator is disinterested, that the mediator generally help the parties settle their dispute, and that the mediator has no particular bias to favor an outcome that advantages one party over another party.So the second dot point on the slide is an attempt to summarize what the mediator actually does and how it can aid settling disputes. These words come almost word for word from the writer of the textbook. But you could see there that the key words are that the mediator assists the parties. The mediator helps them. The mediator helps clarify. Mediator supports them. Mediator assists them. And the mediator makes sure that they are comfortable with any agreement that it settles the dispute.So to have a better understanding of what is this process called mediation and how the process can be conducted, there are two short videos you can have a look at. The first one goes for about 3 minutes. It overviews or in simple terms describes what mediation actually is. And the second video goes for about 4 and 1/2 minutes. It goes in a bit more detail about how mediation can actually be conducted. Just be aware mediation can be conducted in different ways depending on the circumstances, depending on the parties, depending on the type of mediator or preference of a mediator. But the essential features are the same as described in that second video.We've spent a fair bit of time having a look at Ray Fells-- the idea of Ray Fells' DNA of negotiation. Now because mediation is part of the negotiation process, both reaching an agreement and maybe even the implementation of an agreement, Fells also suggests that the DNA negotiation can be identified in mediation. And that's what his table 10.2, shown in this slide, suggests.So there's seven components of the DNA negotiation can be identified in mediation. So the first component, reciprocity, that's what a mediator or mediation helps develop, because the mediator balances the amount of communication that each party has. So there's a high degree of reciprocity connected with mediation. And the term used in this table, procedural justice, that essentially just means that the process is fair. It doesn't favor one party or disadvantage another party.The next component, trust, is a key feature of mediation. To some degree the trust between the parties has been degraded prior to the mediation. That's why they have a dispute or have a deadlock. So the mediation process there can be a mechanism to help repair any trust between the parties. And there also must be trust by the parties in the competence and fairness and disinterestedness of the mediator.The third component of DNA, power, is shaped by the mediation process. So as suggested on this slide, the power imbalances of the parties, if there are any, are not emphasized or not used in the mediation process. So if one party has a higher quality BATNA than the other party, it doesn't mean there is an imbalance of power in the mediation process.And this is because even the party that has the higher quality BATNA has decided to continue negotiation. That's why they're engaged in mediation. So in that sense, then they have rejected the walk away option. They would rather have an agreement than not have an agreement. So in that sense, then, the motivation to agree is higher than the motivation to maintain the demands. And therefore, with mediation there is less likely to be a power imbalance.Moving on to the next component, information exchange, this is a key feature of mediation, where the information exchange is controlled by the mediator. And the mediator tries to ensure that there's a balance of information exchanged, that the information is irrelevant and that the information is helpful to settling the dispute or reaching agreement. But then by the same token, the mediator allows sufficient latitude for one party to exchange information that it thinks for emotional reasons that it wants to exchange, even though it might not necessarily be all that relevant to settling the dispute.And the final two components of the DNA of mediation, ethics and outcome, are mentioned on the slide, so I won't dwell on them. But the idea is that, as I said before, there is necessary components of a mediator being disinterested, being fair, being unbiased. And that helps determine that there's an ethical approach to conduct of the mediation. And therefore, if the agreed outcome, if there is an agreed outcome, is one that both parties are satisfied with.If you had watched the four minute video, the mediation process, you would have seen describing that one particular way in which mediation can be conducted. This slide, again, it's a graphic from the Fells textbook. And it tries to indicate the typical way in which mediation is conducted.So the first part of the process, the intake session, that's just essentially the party supplying basic information, about the status of negotiation to the mediator. So the mediator can have a full understanding of where the negotiation process is and perhaps the reasons for the dispute or the deadlock.So the first formal step then in the process is the mediator's opening statement. That would be where both parties are physically co-located in the same room with the mediator and the mediator, because of the intake session information, makes some comments about what they think as to why the parties are in dispute or deadlock and perhaps some of the ground rules of the mediation, what the process will follow in the mediation, and perhaps some comments about what proposals or suggestions the parties might want to entertain to settle the dispute.So moving on to the third step in the process where the parties make opening statements, that's fairly straightforward. That's where the parties just can summarize where they think the status negotiation is and why they're in dispute. And it also has potential for some comments that might be emotionally charged.So the next step in the process, a summary and agenda setting, that is conducted or done by the mediator. So that summarizes what the mediator has interpreted as to why there is a dispute and what the parties might need to or consider in settling the dispute.And that moves onto the next step, and a step we're familiar with because we had a look at it before. In various models of negotiation, that's exploring the issues. So why are they in dispute? Why could they reach agreement with some elements of the negotiation, but not with these elements of the negotiation?All right, we move onto a different aspect of the negotiation. That's called the private meeting, at least on this slide. That's where the parties separate into private locations, where one party is in one room, another party is in another room. And the mediator sits with the parties at various times and helps them talk through what might be possible solutions or options to settle the dispute. And then the mediator might move between the two parties with the suggestions or the proposals that are generated in their separate or private meetings.So conducting private meetings, the process of generating options is familiar to us, because that happens in the generating offers phase. It happens to us in most models of negotiation, or certainly interest-based negotiation. And that leads or hopefully would lead to the second step where the parties can recommence negotiation. So they are aware of ways in which they can overcome their deadlock, overcome their impasse, and therefore, settle the dispute.And then finally the process ends with an agreement between the parties that had to settle the dispute. One way the dispute might be settled is if they take that issue off the bargaining or negotiation table. It's too difficult to deal with. They won't get an agreement on it because the parties are just too wide and separated in their demands. And therefore they could agree not to agree on this issue, but continue the substantive negotiations on other topics or the issues, and therefore have an agreement and end the negotiation.As mentioned before, negotiation doesn't always follow the same pattern. Depending on the type of negotiation, it can be different. Depending on the nature of the dispute or disagreement between the parties, it can take a different path. And depending on the actual context of the negotiation, it can take a different process or different path.So in negotiations that are highly emotionally charged, such as a family breakdown or a family court issue, negotiations are normally conducted in separate rooms. Or if there's an allegation of some kind of misbehavior by one party against another. The process will be different to the one mentioned in the previous slide.The process of negotiation can also vary because of the qualities or the aspect of the negotiator. As the first dot point suggests, Kob and many others have tried to describe mediators as being one of two general types. And those general types are the dealmaker or the orchestrator.Essentially, a mediator who adopts the dealmaker behavior is one who is actively engaged in the process. That is almost an actual party to the negotiation process. So they come up with solutions. They come up with ideas. And they make proposals in a particularly interventionist way, I guess. So a mediator who adopts the dealmaker type behavior is one who really tries to shape, not only the process of negotiation, but what the final agreement is.To some degree the opposite mediator behavior to the dealmaker is that of the orchestrator. The orchestrator is less active and more passive as an asset. This slide suggests they are the gatekeepers of the communication between the parties. So the orchestrator is a mediator who essentially lets the parties themselves come up with the solutions to settle their dispute, whereas the dealmaker is the one who might, independent of the parties in dispute, come up with proposals or suggestions, which the disputants or disputing parties might not have considered.Whereas the orchestrator wouldn't directly do that. They might do that indirectly by suggesting things to one or both of the parties. And the parties might says, yes, I never thought of that. And they develop the idea and then have some ownership of the idea or the proposal.And there's another type of mediation or mediator that you can have, which is discussed in the Fells book. And that's called transformative mediation. And I guess that's more an extreme version of the dealmaker. That's where the mediator realizes a fundamental dysfunction either relationship between the parties or dysfunction in the negotiation process or its entirely broken down or almost entirely broken down. And therefore, the transformative mediator will try to reshape in a clearly obvious way not only the relationship between the parties, but also the process of settling the dispute and the type of agreement that might be possible.All right, so the final comments then about mediation is that mediation should not be considered to be a last resort in the negotiation process. Fells and others suggest that mediation should be something that is contemplated right at the start of the negotiation process. So it's always there as an option, rather than just a last resort.And that's what this graphic is meant to demonstrate, that if the parties come to an understanding, that if it looks like they're getting to have a deadlock or dispute, that they both agree that mediation is a helpful and viable alternative to either avoid the deadlock or overcome the deadlock. And so that's what the first part of that graphic suggests. The parties have reached a deadlock. Therefore, they willingly engage in mediation. The deadlock is overcome. And they finally have an agreement or a settlement.The second part of the graphic is slightly different. That's where the parties are approaching a deadlock. And it looks like they'll have a dispute. But because they both have the understanding that mediation is a viable option, they avoid having the deadlock themselves. And therefore, they don't have to engage in mediation, and they reach an agreement, independent of or without the assistance of mediation or a mediator.So the point is here that mediation should be something that's considered by both parties at the very beginning of the negotiation, rather than being a last resort. So it's a positive process rather than a negative process. And it's a sign of maturity of the parties themselves, rather than a sign that the parties are too immature to reach an agreement.

Transcript: Mediation, Conciliation and Arbitration Part 3

So for the final part of this topic, we have a look at the other two main methods in which a third party can be involved in a dispute settlement, either in negotiation or in the implementation of negotiated agreement, that is conciliation and arbitration. Conciliation and arbitration are important processes and important contexts in Australia, and certainly important in the employment or workplace context.As the first dot point on this slide suggests, conciliation tends to be overlooked in a lot of the alternative dispute resolution literature, partly because much of that comes from North America. And in North America, the concept of conciliation or the word "conciliation" is rarely used. Rather, the processes is either mediation or arbitration. So just bear that in mind. But in the Australian context, conciliation is important, and it's been important historically.And in the Australian Constitution, section 51(35), the part of the Constitution that details the legislative powers of the federal parliament, that gives the federal parliament the authority to make laws about the conciliation and arbitration of industrial disputes. And both the federal government and state parliaments have created courts of conciliation and arbitration in Australia for over 100 years, are they still exist today.So just bear that in mind. Conciliation is the important part of Australian dispute settlement procedure, certainly in the workplace. But you see in most other dispute settlement procedures outside the workplace, the first process mentioned by those regulations is conciliation. And if that doesn't settle the dispute, then the next method mentioned by those regulations is arbitration.All right then. So what then is the difference between conciliation and arbitration? Andrew Stewart suggests different ways to define the two different methods of dispute settlement, and they are shown in the second dot point and the third point. So you can see there with the second dot point Stewart's definition or description of conciliation is that it's very similar to mediation in many ways.In a technical sense, it's slightly different, partly because conciliation tends to be connected with regulation, and therefore conciliation tends to be an alternative dispute resolution process that is imposed or compulsory, as opposed to mediation, which is one where it's voluntary. So the parties invite the mediator, whereas conciliation is generally regulation has imposed the conciliation process and the conciliator on the parties in dispute.Arbitration, on the other hand, as the last dot point of the slide shows that it's a formal process, and it's very similar to a court process where you call witnesses, the witnesses gives evidence or testimony generally on oath, and the parties use advocacy skills during the process of arbitration. So the key difference, I suppose, or one way to understand the difference between conciliation and arbitration is that with conciliation, the parties in dispute have total control over the outcome.They have less control over the dispute settlement process, but they have total control of the outcome because the dispute is not settled until both parties agree about the terms of the settlement, whereas the conciliator generally shapes the process of conciliation rather than the parties. That's different with arbitration. With arbitration, the parties have a high degree of control over the process because the parties in dispute, they're the ones who decide what witnesses they will call, what evidence they will use, how they'll respond to the claims or the evidence of the other side.But on the other hand, the parties have very little control of the outcome because it's the arbiter, the arbitration person or the entity or the tribunal conducting the arbitration, that decides the outcome. Certainly, that outcome is shaped by and informed by the witnesses and the evidence that has been submitted by the parties in dispute. So the research tells us or suggests that the possibility of moving to arbitration if conciliation fails is often an incentive for the parties to reach an agreement in the conciliation stage because there's a high degree of uncertainty about what the outcome will be in arbitration.The outcome will not be one that is totally divorced from or separated from satisfying the interests of one party, and it might totally favor the other party. Whereas with conciliation, even if there is an agreement or a settlement that isn't wonderful, it's probably far better than a possible outcome from arbitration, where none of the interests of one party are satisfied.So the qualities of both the conciliator and an arbitrator are the same as the qualities of a mediator. We'd expect them to be disinterested. We'd expect them to be helpful for the parties to settle the dispute, and they would have an expectation that they have no stake or no biases in the way they either conduct the conciliation or the arbitration or with the outcome of the conciliation and arbitration.In this unit, we focus on arbitration in the workplace context, and certainly that regulated by the Fair Work Act of 2009. But it's important to understand that arbitration is the main way that regulation specifies disputes to be settled. In Australia, there is what's called a Model Commercial Arbitration Act in New South Wales, as that second dot point shows, and those regulations are contained in the Commercial Arbitration Act of 2010.Most other states in Australia have similar, if not identical, laws to the New South Wales legislation. So the point I'm trying to make here is that arbitration is the main way commercial disputes are settled. If they can't be settled either through negotiation, through mediation, through conciliation, then the law says that parties must go to arbitration before they take the dispute to be settled by a court.In the workplace context, the process of conciliation and the process of arbitration is far more regulated than it is with various commercial arbitration acts and also specifies who the conciliator or who the arbitrator will be. And currently, the conciliator or arbitrator is someone appointed to the Fair Work Commission. So the final point on this slide mentions a concept called private arbitration.Private arbitration is essentially what happens with the commercial arbitration laws in Australia, and it's also the process which most workplace disputes are settled in North America. So what it means by private is that the arbitrator is not a public entity. It's not a public organization. It's not a public tribunal. It's a private person. It's a private individual or group of private individuals.So just bear that in mind. So the private arbitrator is invited by the parties and paid for by the parties in dispute. Whereas in Australia, we have public arbitration in that sense that the arbitrator is a public entity, a public organization, such as the Fair Work Commission, previously Fair Work Australia, or the Australian Industrial Relations Commission.All right, so the final point to make about arbitration is that you can find different types of arbitration that can be used in different contexts or for different types of disputes. So one type of arbitration is voluntary arbitration. So that is essentially where the third party is invited into the dispute settling procedure rather than being imposed on them by moral regulation.So that's where the parties have probably gone through a process of mediation. That hasn't settled the dispute. And then they agreed amongst themselves that they would have a process of arbitration, and it's voluntary. And generally with voluntary arbitration, the decision of the arbitrator is not binding on the parties. It's just a strong suggestion, which the parties are more than likely to accept rather than reject.Which leads on to another type of arbitration, which is binding arbitration. So the difference here is where the parties have agreed amongst themselves that the final method that we use to settle the dispute is arbitration, maybe after having used mediation or conciliation. But the parties agreeing that whatever the decision that the arbitrator makes, that decision will be binding on them. So they'll have to follow that decision or be obliged to follow that decision, certainly morally, if not legally.So binding arbitration is generally the way most collective workplace disputes are settled in Australia. As mentioned at the beginning of the topic that under the Fair Work Act, every collective agreement, every [INAUDIBLE] has a model dispute settling clause, and that clause has a process of arbitration in it. And so the parties are enforced to abide the law or they agree amongst themselves that they will be bound by the arbitrator's decision.There's another type of arbitration that should be worth mentioning, which is this thing called final arbitration. That essentially means that the arbitrator has very little discretion about a kind of decision that the arbitrator makes to settle the dispute. Rather, the arbitrator has only the choice of the part that the parties present themselves. So one party will suggest a way to settle the dispute, the other party will suggest a different way to settle the dispute, and the arbitrator has to pick one or the other.Rather than with more common types of arbitration, binding arbitration for example, you say the arbitrator has a high degree of discretion. So it can be part of the suggestion process of dispute settlement from one party, parts of a suggestion process of dispute settlement from the other party, and parts of a process that the arbitrator might initiate themselves.So to have a better understanding of what is the concept of arbitration and why the parties might want to settle a dispute via arbitration rather than through mediation or conciliation, there are two videos you can have a look at. One goes for about five minutes, and it discusses what is arbitration, and that's the difference between mediation and, I think, conciliation.And there is a second video you can have a look at, which is from a news report from 2011, when there was a workplace dispute between Qantas Airways and the unions representing workers at Qantas, where management decided that to settle the dispute, they couldn't settle the dispute through negotiation. Management decided that it would be better to use the formal arbitration process under the Fair Work Act. And you can see that the chief executive officer of Qantas called the arbitrator the third umpire and the fair umpire. So yeah, so have a look at those, and it'll give you a better understanding about what is arbitration.All right, so just to conclude topic 8, just mention what we will have a look in topic 9. And particularly, we have a greater focus on arbitration and those skills that are used in the arbitration process, and they're called advocacy skills and the advocacies process. And we have a look at that in the context of a dispute that was before the Fair Work Commission in 2015. All right, well, thanks for your interest, and I'll talk to you next time.

Module 3 Transcript:

Transcript: Advocacy and third party dispute intervention

In this topic, this is the first part of two topics where we focus on skills connected with using arbitration as a process of settling a dispute. And so in that sense, then, the skills that are used in an arbitration process are called advocacy skills. So this is the first of two topics where we have a somewhat in-depth look at what skills are required in advocacy.And we do it in the context of advocacy before the Fair Work Commission. And we saw in topic eight that the Fair Work Commission can be involved in dispute settlement in the workplace for a number of reasons and in a number of ways. It can be involved in the bargaining process itself, because the Fair Work Act gives it authority to regulate good faith bargaining and other features of the bargaining process.A more important and a more regular intervention by the Fair Work Commission is in the disputes about the implementation of a workplace agreement about the Enterprise Bargaining Agreement. And we saw in topic eight that the Fair Work Act actually specifies a role for the Fair Work Commission under the dispute settlement model clause.And thirdly, the Fair Work Commission can be involved in issues of speech in the workplace for the reasons specified by the Fair Work Act. And the particular focus on this topic next topic is industrial action. And this is industrial action that is outside the bargaining process or the bargaining phase. So [INAUDIBLE] it's unprotected industrial action.So in topic nine, we, for the first part, we'll have a look at what is the structure of the Fair Work Commission and what are the sort of the process involved. Not the process, but the procedures involved in conducting efficacy before an arbitration hearing in the Fair Work Commission. And we'll have a look at some of the kinds of evidence that can be used in arbitration before the Fair Work Commission, some aspects of witnesses, and some aspects of exhibit evidence.And in topic 10, we have a greater focus on the practice of advocacy in an arbitration hearing. The context of [INAUDIBLE] advocacy skills before the [INAUDIBLE] Fair Work Commission, in topic 9 and topic 10, it's in the context of an actual dispute or hearing that was before the Fair Work Commission in 2015 between Esso Australia Proprietary Limited and the Australian Workers Union. And that was a dispute or that was a hearing about an allegation of Australian Workers Union members or Esso employees taking industrial action. And that's regulated by Section 418 of the Fair Work Act.So a transcript of that Section 418 hearing is found on the [INAUDIBLE]. You'll notice there that in the lectures for this topic and topic 10, references made to parts of the advocacy in that case, and it refers to a paragraph number of the transcript. And that's indicated as [INAUDIBLE] by the letters capital P, capital N, and number. So P and N means paragraph number.So finally then, just so you have an understanding of what was the issue before the arbitration hearing and the use of advocacy skills in Esso and Australian Workers Union. Esso made an application to the Fair Work Commission to issue in order that industrial action should cease. And that was under Section 418.All right, so we're gonna have some understanding about how arbitration happens before the Fair Work Commission. The Fair Work Commission has three different types of members or people who can actually exercise the authority of the Commission. And they are, as the first slide shows, presidential members. Just sort of ordinary members, and they are called commissioners. And there can be expert members. And they are generally part time. And they're only [INAUDIBLE] to a hearing when their high degree of expert knowledge is required.All the members, whether they're presidential members, just normal members, or they are appointed by the [INAUDIBLE] Commission and a state tribunal, or just the part time expert members, they're appointed by the governor general on recommendation by the federal cabinet. And you can see that that's authorized by Section 626 of the Fair Work Act.All the full time members of the Fair Work Commission are allocated to a number of what's called panels. And those panels focus on a particular industry or groups of industries. And so the members of the Commission that are attached to those panels build up a high degree of expertise about the working practices within those industries.In more rural and remote areas of Australia where there might be only one member of the Commission located, that member of the Commission will hear cases covering a whole range of industries rather than restrict to a number of industries such as if you have just allocated to one or a couple of panels.Any matter or any case brought before the Fair Work Commission can be easily identified. It can be identified in two ways. One in the year in which the application was made. So for example, in our Esso Australian Workers Union case, an application was made in the year 2015. Therefore, the first part of the identification label to this matter is called 2015. Just don't worry about it. It's 2015.Then it will have the hearing or the case matter will have what's called a running number. That's not necessarily sequential. It depends on what office or what registry the application was filed. But [INAUDIBLE] Esso [INAUDIBLE] identified. It has identification number C2015-709.Most hearings of the Fair Work Commission are conducted by just a single member of the Commission. Occasionally there can be more than one members or what's called a full bench. So the hearing was conducted by a single member, and that was Deputy President Hamilton.A full bench hears matters normally on appeal. So what that means is that you can have a hearing before a single member, such as Deputy President Hamilton. Deputy President Hamilton makes an arbitrated decision. You might not like the decision for a number of reasons. You have an opportunity to appeal that to a full bench. A full bench normally consists of at least three members of the Commission, one of whom must be a presidential member.You can only appeal-- the main reason for an appeal is because there's some defect in the decision making process of the original member of the Commission. So there was some element of the regulation or the law that wasn't followed or there was some element of procedural fairness or there was some evidence that was misinterpreted or not given sufficient weight. So you can make an appeal then. They're relatively rare, because they're expensive.

Transcript: Advocacy and Arbitration

We now tend to have a look at the actual structure or layout of the Fair Work Commission hearing room. The structure and layout of the hearing room is very similar to the layout of a courtroom. At the front of the room, that's where the decision maker-- the presiding member of the Fair Work Commission-- is located. And that part of the room is elevated. That is it is higher than the other parts of the room.That part of the room is called the bench. And the reason why it's elevated is so that it can give the appearance of the authority that the decision maker-- the member of the tribunal-- is exercising. So you can get some respect in authority from its physical elevation relative to the rest of the room. On the flat part of the room, moving towards the back of the room from the bench, the next important part of the room you'll find is the location of the presiding members associate or clerk or assistant. And they sort of run the administrative arrangements connected with the hearing.So any documents that are handed by an advocate to the bench aren't handed directly to the bench. They're handed to the member's associative clerk who then hands it to the bench, or if a document has to be shown to a witness, that document is handed to the associate or clerk and the clerk then hands that to the associate or to the witness. At roughly the same location or the same level in the room to the members associate or clerk, you find the court reporter. That's the individual who does provides the transcription service of the conversation during the tribunal hearing.Next, you will find a witness box. That's the place, obviously, where any physical witness who gives oral or verbal evidence is located when they provide their evidence and when they are questioned by the various advocates. Then, towards the end of the back of the room, we will find the bar table. That's a long table, and that is where all of the advocates are located.It's called the bar table because-- anyway, don't worry about that. It has to do with the members of the bar back in England. That's where they were located. Members of the bar are advocates.It's important to appreciate that-- you can see on the second point of the slide that there is a protocol for where the advocate for each of the parties sits. So the advocate for the applicant in a matter sits on the right hand side of the bar table as it looks towards the front of the room, and the advocate for the respondent-- that is the person or the parties who are defending and opposing the application-- sits on the left hand side of the bar table. So in our section 418 case, Esso Australia is the applicant. So the advocate sits on the right hand side. The Australian Workers Union is the respondent, so the advocate sits on the left hand side of the bar table.Unlike some of the courtroom behavior you might see on American-made TV episodes or movies, advocates in the Fair Work Commission and in other tribunals in Australia generally stay located at the bar table. They don't walk around the hearing room. The only movement they make is to either stand up or sit down. The only exception to this is where an advocate-- as the last point on this slide indicates-- needs to identify for a witness a placing of a document that they want the witness to be aware of or read. And to do that-- to approach the witness, they need permission of the bench.While the procedure before the Fair Work Commission is far less informal than what you might find in a courtroom, it still tends to follow the patterns of protocol and behavior that you find in a courtroom, because the Fair Work Commission is exercising similar kind of authority to a court. The Fair Work Commission is exercising the authority of the parliament-- the federal parliament-- and therefore, the procedures the protocols, as indicated on this slide, are just a way in which people appearing before the tribunal can show their respect to the authority in which the Fair Work Commission represents. So when the tribunal members enter the room or leave the room-- everybody else in the room rises and bows when they enter the room or bows before they leave the room to illustrate the respect for the authority that the commission member exercises.If, during the hearing, somebody wants to leave the room, they should before they exit the room give a small bow to the front of the room to recognize the authority of the tribunal. And when somebody enters the room during the hearing, likewise. They should give a small bow or a nod to the front of the room to acknowledge the authority that the Fair Work Commission member is exercising.So even though the Fair Work Commission is far less formal than a courtroom, it still follows many of the procedures in a courtroom with a couple of exceptions, which are mentioned on the slide. The Fair Work Commission is not a legal tribunal, therefore the parties appearing before it or the advocates appearing before it are meant to be workplace or industrial practitioners rather than trained legal representatives. So the history of the tribunal, the Fair Work Commission, and its predecessors is that if a legally trained advocate wants to appear before the tribunal, they need to get permission from the tribunal to do so.We can see in our section 418 case that the advocate for Esso, [? Mr.Trinidad, ?] is a solicitor. He is a paid agent of Esso, and therefore has to request and seek and he's granted permission to appear before the Fair Work Commission. A key feature to understand about the procedure of the Fair Work Commission is that it is not bound by legal technicalities. An important part of that is that it is not bound by the rules of evidence.In a courtroom procedure, the rules of evidence are quite technical. So there's some evidence that can be introduced and there's some evidence that can't be introduced. A key point here about the lack of legal technicalities of the Fair Work Commission is that it will allow the use of hearsay evidence. You can't use hearsay evidence in a courtroom.Hearsay evidence is what you might call second hand evidence. So an example of that might be, Fred is a witness and Fred says, yes, George told Fred that George saw Mary steal the money. That's an example of hearsay evidence, because Fred did not see Mary steal the money. Allegedly, it was George who saw Mary steal the money. So it's indirect evidence. So that wouldn't be allowed in a courtroom, but that kind of evidence is allowed in the Fair Work Commission.One of the reasons why it's not allowed in a courtroom is because Mary's advocate is not given the opportunity to question the truthfulness of what George is said to have seen, heard, or experienced. So to convert that example of hearsay evidence into non-hearsay evidence would mean that George would have to give the evidence of what he actually saw Mary do or not do, rather then Fred. And we can see an example of that in our Esso AWU case, where hearsay evidence is allowed, even though the advocate for the AWU makes some kind of formal objection and is not happy about the use of that kind of evidence.Notwithstanding the lack of formal procedure or legal technicalities before hearings of the Fair Work Commission, there is a penalty for someone who supplies either false or misleading evidence or for someone who allows somebody else to supply false or misleading evidence. Another aspect of the formality of the Fair Work Commission hearing is very similar to a courtroom, whereas the advocate is generally seated at the bar table, unless they're actually either addressing a witness, as in questioning a witness, or making a submission-- making a speech to the hearing room, or responding to queries or questions from the tribunal member. In that case, when an advocate is speaking, they stand up to speak. When they're not speaking, they should sit down.The only exception to this, generally, is if an advocate wants to make an objection to something that the opposing party's advocate has done or will do or said they might do. Then, to make the objection, the advocate should stand up. If it's a lengthy objection, the advocate whose behavior is being objected to should sit down and let the opposing advocate clearly explain the nature of their objection.The final two points to discuss about the formality of a Fair Work Commission hearing are shown on this slide. The first one is that all the discussion-- everything that is said during the hearing becomes part of the official record. It's part of the transcript. It's on the record. And that's why you have the court reporter.The only exception to that is where, for a number of reasons which have to do with legal technicalities or procedural technicalities or something like that, the tribunal member will take the hearing off-record. That way, the discussion in the hearing room does not become part of the transcription. That off-record behavior is normally called a conference.We see now in our section 418 case that the parties had a conference which was not included in the transcript. In the transcript, the advocate for the AWU actually wanted to make some reference to what was discussed during the conference-- during the off-record discussion-- and Deputy President Hamilton said, no, you can't discuss what's off-record and put it on the record.And the final two procedural issues to discuss-- the last two dot points. The advocates are quite formal in the way they address each other. It's either "my colleague," or Mr. whatever his last name is, or miss or Mrs. Whatever her last name is. And if they're legally trained, they're called a friend, or "my learned friend," if they're a senior barrister. And finally, there's no formal dress code, but generally it's sort of standard business attire. Legal practitioners and barristers don't wear robes and gowns and wigs and that sort of thing.

Transcript: Advocacy - What is it?

As you can see on the first dot point of this slide, it is an indication of what advocacy is. It's the presentation-- the investigation analysis and presentation of an argument for the benefit of somebody else other than the advocate. And that other person is the party which the advocate represents.So in that sense then, advocacy is somewhat similar to constituency-based negotiations, where the people actually doing the activity in the negotiation or the advocacy aren't people who are going to directly benefit from the outcome. And so we saw earlier in the unit that negotiators representing a constituency need to get approval and authority of the constituents for their conduct. Likewise, with advocacy, an advocate needs to get approval from the party that represent for the type of argument, and the plan to run before a tribunal, and for the type of advocacy in which they plan to demonstrate.So in many respects, advocacy has two main components to it. One is presenting an argument or a case that best represents the interests of the parties that the advocate represents. And secondly, advocacy also involves research and analysis to put forward an argument that is likely to undermine or challenge or even destroy the argument that the opposing advocate is likely to represent or present.So there are two key points then connected with advocacy, as the last dot point in the slide shows. And those two key activities are case preparation and case presentation, which we'll have a look at in a little bit more detail shortly. But just be aware that even though an advocate spends a considerable amount of time, effort, and expertise in preparing the case, the way they actually present it might not necessarily follow the structural the format or the sequence that they plan to when they do their case preparation.Because just like in negotiation, the advocate has to respond to what the opposing advocate does, or just as a negotiator has to respond to what the opposing negotiating parties do. So in that sense then, advocacy-- advocates need to be somewhat fluid or somewhat flexible in the way they present their case so that it best fits what's actually happening in a response to the opposing advocate. So hence, advocates need the capacity to think on their feet rather than be sort of limited by their formal structure and sequence out of their case presentation-- of their case preparation rather.So in general terms, case preparation involves two aspects. One is, as the first dot point indicates, the extent to which how strong does an advocate's argument need to be? In other words, what standard of proof does the advocate need to satisfy before the decision maker or the tribunal will be persuaded by the advocate's argument.And we'll have a look at the two standard of proofs the tribunals can use. Ones a very high standard, and is a not so high standard, but it's still a relatively high standard. And the second element or aspect of case preparation is the anticipation of what the opposing party or the opposing advocate will do.So you need to have some understanding of some appreciation of what the opposing advocate argument is likely to be, and how you can present evidence or develop an argument that challenges what your opposing advocate is likely to do in addition to developing an argument that supports your preferred understanding of events. So we can see there in the second dot point on this slide, what Gleason suggests is the kinds of question an advocate should ask themselves when they are preparing for their-- or doing their case preparation or conducting their analysis.And so in that sense then, you need to be aware of what are the strengths of your case. But equally important what are the weaknesses of your case. Because having an understanding of what are the weaknesses of your case will add some insight into what you think might be the approach or the argument that the opposing advocate would make. And therefore, that would give you some insight into how you might challenge what the opposing advocate might present, or what other evidence you might need to gather or have to strengthen any of the weaknesses or inconsistencies in your arguments.So a key point in case preparation is the development of a theory of the case, or the case theory. And you can see on this slide the 10 features of development of a case theory that Gleason suggests contribute to effective advocacy. And the first point on the slide-- it should be emphasized-- and that is that the advocate should have a simple story to tell the tribunal. And that story should be a persuasive point or as persuasive as they can construct it.So long, complex stories, one that should be avoided because, one, they're difficult to support with evidence. Two, they allow for a greater number of links in the chain of events or the chain of the argument in which the opposing advocate can potentially attack. And three, they tend to be complex, and difficult, and not always easy to understand or follow, and therefore, they lose their persuasive power.So what makes a simple logical narrative that is persuasive is the facts that the advocate relies on to support their narrative. So facts are key in advocacy. And the facts that an advocate presents and the facts are supported by evidence, either by witness evidence, or documentary evidence, or both. The facts have to be consistent with each other.The facts have to be consistent with what the outcome of the party that the advocate represents desires to have. Just as we saw with constituency-based negotiation, in the negotiator needs to satisfy the desires or interests of the constituency. Likewise, with advocacy, the advocate needs to satisfy the desires or the outcome of the party they're representing.Item 8 on the slide is also important to emphasize-- is that the kind of decision the advocate is asking the tribunal to make should be one that doesn't place the tribunal, or the tribunal maker, the decision maker, in any particular uncomfortable position. So in that sense, then what that means is you shouldn't ask the tribunal or the decision maker to make a decision that appears to challenge the general interpretation of the law or the general interpretation or the relevance of certain factual events in the context.Because the more difficult or challenging type of decision that is desired from an advocate, the less likely it is that the tribunal or decision maker will make that kind of decision. So just to summarize then, effective case theory is one that is supported by the evidence the advocate intends to present to the tribunal. And it also accommodates or appreciates the evidence that might be needed to challenge or overcome the kind of argument or factual situation that the opposing advocate is likely to present to the tribunal.So it's generally agreed that there are three main components of developing a case theory, or theory of a case, and they're shown on this slide. So they have to do with an understanding of the issues of law. They're involved in the matter and understanding of issues of policy, and an understanding of the issues of fact.We'll have a look at issues of law, issues of policy, and issues of fact in a little bit more detail shortly. But it's important to appreciate the difference between law and policy. Law is essentially what does the tribunal or the decision maker have the lawful authority to make the type of decision that the advocate is requesting them to make. Issues of policy, on the other hand, are such where the law and the facts of a case sort of come to an intersection.So one such [INAUDIBLE] issues of policy has to deal with how has the relevant law or relevant regulation been interpreted in the past, and should that interpretation be carried on for this particular case. Or alternatively, are the facts that are presented by the advocate, are they relevant or not relevant in interpreting the law? So as the last dot point on this slide suggests or indicates, that in most circumstances, and certainly in front of a Fair Work Commission, issues of law and issues of policy are generally not contested. They're not in dispute between the advocates or their parties.What is most of the time-- about 90% of the time-- in dispute are the facts. And we see now Esso Australian Workers Union section 418 case. It's the issues of fact that are central to understand it to the theory of the case put by each of the advocates. And the issues of fact are also important to understand, or part of the picture that each advocate is trying to present about which types of policy are relevant to the decision making process, and which talks of policy or brief decisions are not relevant.So we'll firstly have a look at issues of law with our section 418 case. And so you can see there, the first issue of law is what kind of authority or decision does section 418, the Fair Work Act, allow the Fair Work Commission to make? And there are two aspects of that-- are there any other elements of the Fair Work Act-- any other aspects of the law-- that might be relevant for the tribunal to decide whether it has the authority to make a decision under section 418 or not.And so the other issues of law in our Esso AWU case is the extent to which the behavior of the Esso workers satisfies the meaning of protected industrial action under section 408 of the Fair Work Act, or the extent to which less protected industrial action has been authorized by the procedural requirements of the act [INAUDIBLE] under section 443.So just to conclude then, the issues of law in the Esso case was the extent to which section 418 authorizes the commission to make a decision. And are there any restrictions on that kind of decision if the behavior of the SO workers satisfies the definition of protected industrial action under section 408. And is the necessary precondition for protected industrial action-- did it occur?So moving on to having a look at issues of policy with our section 418 case, you'll see there, as this slide indicates, that the main issue of policy in this case was the extent to which is a failure by the 32 workers of Esso to work overtime-- has the tribunal interpreted that behavior to mean that that behavior is actually industrial action as described by section 19 of the Fair Work Act? And we can see there that both advocates had different views put before the tribunal. And they relied on different decisions, or previous full bench decisions, made by the Fair Work Commission and its predecessors.So as it shows in the last dot point of this slide, that Mr. [INAUDIBLE], the advocate for Esso, he relied on a decision of the predecessor to the Fair Work Commission, the Australian Industrial Relations Commission decision in 2008, which was an interpretation of whether the failure to work overtime was industrial action. While the advocate for the AWU, Mr. [INAUDIBLE], he relied on more recent tribunal decisions, The MUA versus Patrick Stevedores and General Motors Holding and Australian Workers Union to assist or to argue about the relevance of the facts as they apply or do not apply to the kind of decisions that can be made under section 418.So the Patrick Stevedores decision was what-- is the threshold or the standard which is required to make a decision that the conduct of the workers is industrial action. And General Motors Holding matter was what needs to occur, in a general sense, before the tribunal can be satisfied with itself that the union is organizing industrial action. So moving onto issues of fact, as the first dot point on this slide shows, that in our section 418 case, the facts were in dispute.So what was in dispute was that the failure of 32 workers to work overtime-- was that just merely a coincidence, or was it planned or coordinated in some way? Secondly, was the kind of work that the 32 employees were asked to do, had they worked overtime-- the shutdown work-- does that satisfy the meaning of project work? And if it did satisfy the meaning of project work, then that would be covered by the protected industrial action ban that the Australian Workers Union already had in place.And third issue of fact that was in dispute was the extent to which the union was organizing, or in some way assisting, or planning, or coordinating the 32 workers' refusal to work overtime. And both advocates presented evidence that supported their theory of the case, and their interpretation of the behavior to satisfy certain facts. So we can see on the last dot point of the slide that the advocate for Esso, Mr. [INAUDIBLE], he relied on both witness evidence and exhibit evidence to fulfill his preferred understanding of what happened, or what the facts actually were.Alternatively, the advocate for the AWU, Mr. [INAUDIBLE], merely relied on witness evidence. And partly because of the nature of section 418, he said that the evidence he relied on wasn't necessarily what you might call affirmative evidence. It was rebuttal kind of evidence to challenge the interpretation of the events that SO was putting forward before the tribunal.

Transcript: Advocacy and issues of fact

Issues of fact, as we've already mentioned, are best demonstrated by supplying evidence to the tribunal. And evidence can take on, essentially, two different forms, either witness evidence or exhibit evidence.So we'll have a look at, briefly, witness evidence first. We deal with witnesses in more detail in the next topic, in Topic 10. So we're having a look at witnesses here in the confines of the theory of the case and case preparation.So when an advocate is preparing a case and making a decision about what witnesses they need to use to supply the evidence, to show the factual situation, as would support the argument or the theory of the case that they are trying to develop, the advocate should be clear in why they want to use a particular witness.As the first up point shows, calling witnesses to give evidence is a bit of a two-edged sword. While on the one hand, they can help your theory of the case or help your advocacy because they supplied direct evidence of the facts that can support your theory of the case, but on the other hand, every time you call a witness, that allows the opposing advocate an opportunity to question your witness. That is cross-examination.And we'll see in the next topic, cross-examination is essentially the procedure or designed to reduce the credibility of the evidence of your own witness or of the opposing witness. So in that sense, then, the fewer witnesses that an advocate uses to demonstrate the issues of fact which they'd like the tribunal to appreciate should only be those that are essential, as opposed to that might be just useful.So we can see in our section 418 case that both advocates presented two witnesses each, or relied on two witnesses each. Mr. Trinity for SO called two witnesses, a Mr. Mackey and Mr. Stoke, and they were both senior employees of SO. The advocate for the Australian Workers Union, Mr. Burnham, he also relied on two witnesses, a Mr. Stage and Mr. Davis. One was an employee of SO who worked at the Longford plant. And one was a union official.So the objective of calling the two witnesses by each of the advocates was to present affirmative evidence of the theory of the facts and issue that is consistent with their case theory, and at the same time, to challenge the theory of the case or the facts that were presented by the opposing advocate. So in particular, the reason why Mr. Davis was called was to challenge the suggestion made by the evidence, the witnesses, the call for SO that the AWU was in some way organizing or coordinating the failure of the 32 workers to do overtime.In most circumstances when an advocate wants to call a witness prior to them actually-- witness evidence can be provided in two forms, one in a written form, and one in a verbal form. In most circumstances, an advocate has to give notice to the other side that the witnesses they plan to call. And the witness also has an opportunity, or should, write out a typewritten version of the evidence that they would give if they were called into the hearing room and had to give verbal or oral evidence from the witness box. And so that written evidence from the witness is called a witness statement.So not every witness who prepares a witness statement is called to give evidence, unless there is something in the witness statement that, one, their advocate is going to rely on and wants to emphasize, or secondly, that the opposing advocate wants to challenge, or question, or query. So in that sense, then, even though witness statements are adduced or admitted into evidence as an exhibit, I guess, technically, they are not exhibit evidence, they are still witness evidence, or the written form.So we can see as that last point on this slide, that the two witnesses call for SO had both prepared a witness statement, and whereas, the two witnesses called for the union had not prepared a witness statement. Now, the explanation as to why neither the witnesses called for the union had a prepared witness statement has to do with the urgency in which section 418 matters are called. Because you remember that the commission must make a decision within, I think, two days.As mentioned, the other form in which evidence can be presented to show the factual situation that an advocate is arguing can also be supplied by the usual exhibits. Now, exhibits are generally in a written form, but they can also be visual recordings. And they will still be called exhibits.So you can see the first up point that shows the procedure in which an exhibit is adduced or admitted into evidence in front of the Fair Work Commission and most tribunals. And the procedure there is that once it is admitted into evidence or accepted into evidence, it is given an identification number. And that identification indicates which party or which advocate has adduced that exhibit as evidence.And so, as the second up point shows, that Mr. Trinity for SO adduced or provided four documents as exhibit evidence. And they were all identified with the letter E. And the letter E stands for SO. So that was evidence that was adduced or supplied by the advocate for SO. And they were each given a numerical number-- 1, 2, 3, 4-- to identify one exhibit piece of exhibit evidence from the other.And you can see in the transcript of the hearing where those four exhibit evidence documents were actually adduced or admitted into evidence-- at paragraph 187, paragraph 265, paragraph 435, and paragraph 450. And you can see that the advocate Mr. Trinity, the advocate for SO used those exhibits, and particularly exhibit 3 and exhibit 4, to demonstrate a particular issue in fact, or that was persuasive or helpful to his narrative of the theory of the case.So just to sum up, then, that a key aspect of case preparation is understanding the notions of issues of law, issues of policy, and issues of fact. In most situations, issues of law and issues of policy are not in dispute. What tends to be in dispute more often than not are issues of fact. And the way an advocate tries to put their understanding of what actually happened, in other words, the facts, before the tribunal is by calling evidence, the use of evidence, and that can either be witnesses or exhibit documentary evidence.And in our section 418 case, we show examples of all of those. Both advocates called two witnesses each. And the advocate for SO relied on two documents that were entered in as exhibit evidence, in addition to the witness statements of his two witnesses.So just moving on, then, to two important features of advocacy and tribunal decision-making, and these are the concepts of standard of proof and onus of proof. We saw previously that one of the features of case preparation is for the advocate to understand what is the standard of proof the decision-maker requires before they can make a favorable decision.And so what the standard of proof means is the degree of difficulty or the amount of evidence required before the factual situation presented by one advocate is likely to be accepted by the decision-maker or the tribunal. And there are two standards of proof. One is called the civil standard, and one is called the criminal standard, as the first dot point on this slide shows.The criminal standard is the higher standard, whereas the civil standard is the lower standard. Now, it's called the criminal standard because that's the standard of proof that is required in court dealing with criminal matters, so the criminal law. And that standard is the beyond reasonable doubt standard. So that's essentially-- some people interpret that to say that it is 90% probable that what is alleged to have happened actually happened, and that probability is supported by a great deal of evidence.The weaker standard of proof, the civil standard of proof, is used in courts and tribunal hearings not dealing with criminal matters. And as it shows on the slide, it is the more likely than not type of standard. So what actually happened, the weight of evidence only has to be to the extent where it is more likely or probable that x happened rather than y, in contrast to the criminal standard beyond reasonable doubt is that there has to be almost no doubt that x happened as opposed to y happened. So some people have classified or described the criminal standard of proof as 90% or more and the civil standard of proof as just 51% or more.The onus of proof is-- well, it sounds similar to standard of proof, but it's different. It essentially means, which of the parties, or which of the advocate, has the burden to put a pervasive case forward, that their understanding of events is what actually occurred. So generally, in most circumstances, it's the applicant who has the burden of proof. So it's the applicant advocate has to use the evidence to show that their alleged facts, factual situation, actually occurred, whereas the respondent only mainly has to challenge the evidence or the factual situation as presented by the applicant.So finally, then, to conclude Topic 10, or to include Topic 9, I should say, there are two videos that you might care to watch. One goes for about 6 and 1/2 minutes, and one goes for about 9 and 1/2 minutes. Both have to do with advocacy or the conduct of advocacy, even while the title of the videos suggest that more has to do with advocacy presentation, which we look at in Topic 10. I think they're probably more relevant to case preparation rather than case presentation, so they're more useful for understanding Topic 9.So the last point I'll mention is that there is an Appendix to Topic 9 that deals with some of the requirements of Section 418 of the Fair Work Act. And you can look at that on the print version of the Topic 9 lecture slides.All right, thanks for your attention and your interest. And I'll talk to you later.

Module 5 Transcript:

Transcript: Distributive negotiation

In this topic, we have a look at distributive and integrative negotiation. And we build on the information that we had a look at in the first topic, defining negotiation, and the two extreme approaches to negotiation being competitive or being cooperative.Another objective of this topic is to have a look more deeply at what Ray Fells calls the "DNA of negotiation." So in that sense, just bear in mind that Ray Fells is using DNA as an analogy or a metaphor. And so it's not an actual description of negotiation. And we also have a look at what are the components of the DNA of negotiation according to Ray Falls.If you recall from topic one, we had a look at the notion of competitive negotiation. In the academic literature, competitive negotiation is usually described as behavior consistent with distributive negotiation.So you see the first dot point there is an explanation of what distributive negotiation is. And as it says there, it's described as a fixed-sum approach to negotiation where the pie, or the resources to be distributed, is limited. So in that sense, then, the size of the resources or the size of the pie is not expanded during the negotiation. The main purpose of the negotiation is to determine who gets a larger slice or piece of the pie.In that sense, then, distributive negotiation is generally considered to be a win-lose approach. The side that gets the larger slice of the pie wins. The side that gets the smaller slice of the pie loses.The term "distributive bargaining" or "distribution negotiation" is generally attributed to Walton and McKersie on their study published in the mid 1960s. And other authors since then who have built on their understanding of negotiation and their descriptions and labels have identified some of the key aspects of distributive negotiation. And they are shown on the second dot point of this slide.So a key point there is the notion of a target point. As it says, a target point is the desired outcome. So as we saw in topic one, part of the preplanning for negotiation is to establish or write down what you think would be a satisfying outcome from the negotiation even before you started the negotiation. That is essentially your target point.The second key aspect of distributive negotiation is the idea of a resistance point. That is essentially the point at which you are willing to end the negotiation. If the outcome looks like it will have lesser value or lesser quantity or be of a lesser size or price, depending on the type of negotiation, than your resistance point, then it's not in your benefit to continue negotiation that is lower or smaller than your resistance point. So in other words, your resistance point is your walk-away stance.The combination of your target point and your resistance points influences the offers and counteroffers that you make during the negotiation. Ideally, your offers will be closer to your target point rather than closer to your resistance points. Ideally, the offers that you are willing to accept from the other side are closer to their resistance points rather than their target points.So in short, then, the gap or the distance between your target point and your resistance point is the zone in which you want negotiation to take place-- or the range. So you will not negotiate anything that's less than your resistance point. And obviously-- or not obviously, but more than likely-- the other party will not negotiate anything that is above or close to your target point. So it is the concept of the resistance point and the target point that essentially shapes your approach to a distributive negotiation.Generally you'll find that the first offer or the counter offer is somewhat exaggerated. So it might be greater than the target point. And that is called "ambit." So it's not a realistic or genuine offer. It's just an attempt to assess the boundaries or the resistance point of the other side.What is beneficial in distributive negotiation is if you can try to identify or pinpoint what the other side's resistance point is because, ideally, you want an outcome that is close to the resistance point. And that should be close to your target point. The way you try to identify what the other side's resistance point is is through the information exchange, or how they respond to your offers.Conversely, your objective is to try and conceal from the other side what your resistance point is. And you do that in a number of ways. And in face-to-face negotiation, that could just simply be your body language. But in text-based negotiation, it could be the way you respond to the other side's offers or counter offers.So just to conclude, then, the strategy that you would adopt in a distributive negotiation is to try to identify the other side's resistance points or point and try and hide or conceal your resistance point. The outcome that you want should be close to their resistance point and close to your target point.So one way to understand that is that distributive negotiation is something of a tug of war. So the graphic on this slide tries to illustrate how this tug of war might work. So the target point for negotiator A is here. The target point for negotiator B is here.So both sides are pulling on two ropes, one from each party. And they try to move the ropes across the center line so that the resistance point is closer to the center line, which is essentially the agreed outcome. So you try and move the other party's resistance point closer to the agreed outcome and move your resistance point further away from the center line, or the agreed outcome.Finally, just to clarify this discussion on distributive negotiation, there are two short videos you can have a look at. One just takes about two minutes and explains it. Another one about distributive bargaining and the dangers of being greedy tries to establish why adopting distributive negotiation approaches in every negotiation can have more disadvantages than benefits.

Transcript: Integrative negotiation

So having had a look at one of the components and approaches to distributed negotiation, we move on now and have a look at what is integrating negotiation. And you'll see on this slide with the first dot point there's the definition of Walton and McKersie. And the key point here is, well, it's called distributive because the objectives of the negotiating parties are not generally in conflict, or they don't oppose each other. So in that sense, it's possible for both parties to achieve their goals through the negotiation process.Whereas compare that with distributive negotiation. It was generally impossible for both parties to achieve their goals. Because one party would get more of the resources, and the other party would get less of the resources. The outcome for one party would be closer to the target point. The outcome for the other party would be closer to the resistance point.With integrative negotiation, that doesn't apply. Both parties can achieve an outcome that is close to their target point. So in that sense, then, the goals are integrated into the negotiation process, hence the label "integrated bargaining."So if you recall, that distributive negotiation is essentially a zero-sum outcome. Integrated bargaining is what it's called. It's more than a zero-sum outcome or more than a zero-sum game. Zero-sum outcomes have winners and losers. More than zero-sum outcomes-- nobody loses, and you can have both winners. In that sense, both parties, or all the negotiating parties, can achieve their goals.So for this reason, integrative negotiation is often called win-win negotiation, while distributive negotiation is often called win-lose negotiation. There's a three-minute video that you can watch called "The Orange Quarrel," a short version, which gives you an example of a negotiation that adopts a distributive approach, where neither party has their goals satisfied, in comparison to a integrative negotiation approach, where both parties can have their goals satisfied.Now, the reason why that would be integrated is because the goals or objectives of the parties are not in conflict or not opposing each other. Therefore, they can be integrated into the negotiation process.And the research on integrative negotiation tends to inform us that there is a particular attitude that needs to be adopted to the negotiation for this to be facilitated. And as the first dot point says there, as Linda Putnam suggests, the negotiating parties need to be innovative or have a willingness to be innovative and certainly, to be cooperative. So that's why it's called-- they must try and expand the size of the pie, rather than just distribute an existing pie.The research literature tells us that to adopt a integrative negotiation approach, both parties should have common goals. Well, that's true, in a sense, but just understand what that means. It doesn't mean that they want to have exactly the same outcome from the negotiation. If that was the situation, it would have the characteristics of distributed negotiation.What it essentially means is that the common goal they can have is just satisfaction with the agreed outcome, whereas with distributive negotiation, one party would be satisfied with the outcome. The other party would be dissatisfied with the outcome. So in integrative negotiation the common goal can simply be that both parties are willing to have an outcome that they are satisfied with, so just bear that in mind.Other features of integrative negotiation are that the parties must have a belief that they can satisfy each of their outcomes. And so it can be a win-win outcome, and both parties will be satisfied by the agreement. A key point to mention is that the legitimacy or the validity of the other party's interests, or the other party's desires, or target point must be appreciated.So their desired outcome from negotiation has the same level of legitimacy or validity as your desired outcome from the negotiation. The key difference is that the desired outcomes are not incompatible or not in conflict.The final characteristics, other characteristics, are in those last two sub dot points, trust and clear and accurate communication. We see there that trust and communication are elements of Rayfield's DNA negotiation, which is what we'll have a look at next.So just to conclude, then, integrative negotiation is cooperative negotiation. But it's called integrative, because the desires of the parties are not in conflict. Therefore, satisfying those desires can be integrated into the negotiation process in the negotiated agreement.

Transcript: The 'DNA' of negotiation

So having had a look at the characteristics of distributive negotiation and compared that to the characteristics of integrative negotiation, we'll now move on and have a look at what Ray Fells calls the "DNA negotiation." Ray Fells has been developing this idea for getting on to two decades now. It's finally becoming more clear in what he means.And in the textbook we use in this unit, Fells uses the DNA negotiation analogy or metaphor quite often. So we should become more familiar with it. And it's a helpful way to understand what is negotiation, what are its key elements, and why each negotiation is somewhat different from even negotiations in a similar context over similar issues or topics.So on this slide, you'll see the 2016 quote from Ray Fells and colleagues explaining why they use the DNA metaphor for negotiation. And there's a graphic of the DNA helix. So you can just familiarize yourself or recall what DNA actually is.So the idea behind the metaphor is that no two DNA strands in negotiation will be identical because the components that make up the DNA helix will be dissimilar in any negotiation. Or the proportion of those components will be dissimilar. And those components are reciprocity, trust, power, information exchange, ethics, and the outcome. So we'll briefly have a look at each of the components of the DNA negotiation.So the first component we'll have to look at is reciprocity. Reciprocity, as the bold text suggests, is essentially the other negotiation party will tend to mimic or copy your behavior. So in other words, the way you behave will influence the way the other side behaves. And they will tend to behave in the same way you behave.This can have two outcomes. So the first one is what some people just call a "virtuous cycle." And so that's essentially-- the suggestion is there that if your side supplies a little bit of information, the other side will reciprocate by also supplying a little bit of information. Conversely, if you then supply more information, they will reciprocate by supplying even more information.The outcome there is that because both parties have more information about what the desired outcome of each side is, there is an increased understanding of how the negotiation can proceed and what the outcome might look like. And you build on trust between the parties.You see the second example there of the not-so-virtuous cycle. He said if one party behaves in a disruptive or less than cooperative manner, it's likely that the other side will reciprocate and copy that behavior. The outcome there, as it suggests, is a dialogue of the dead-- both parties talking but nobody listening. So a key point, then, I guess, in reciprocity is you should behave the way you'd like the other party to behave. That's one example.Another feature of reciprocity, as the dialogue of the dead outcome suggests, is that listening is a key feature of communicating with the other side. So listen to what they have to say rather than just expect them to be the recipients of information from your side.The second component of Fells's DNA negotiation is trust. Now, there can be different types of trust. And it's a difficult term to define. So trust can essentially mean just being consistent. I trust you to behave the same way this week as you did last week, whether that behavior is helpful or unhelpful to me.Or it could be a more positive understanding, where the trust is equated with being honest. If someone is trustworthy, they are honest. So trust can have different definitions or connotations generally and, to some degree, also in the negotiation context. But as the bold text on this slide suggests, trust or trying to develop trust can be a risky approach because it might not be reciprocated by the other side.So there are several types of trusts in the negotiation context. As it says, there is calculus-based trust, which is essentially, is trusting the other side-- is it beneficial to me in comparison to not trusting them?Identification-based trust is essentially their reputation. How much do you know about them? How much do you know about their behavior? Are they likely to be consistent in their behavior?And the third type of trust in a negotiation context that's most relevant is situation-specific trust. So elements of trust can vary from one part of the negotiation to the other or from one negotiation to the next negotiation. That's essentially what situation-specific trust negotiation is directed at.So we'll move on and have a look at the third component of the DNA of negotiation, which is power. The concept of power in negotiation we explore in more depth in a later topic. So we won't dwell on it too much now. We'll just briefly overview the concept of power.So no two parties have identical power in any negotiation. And there's various sources of power or various understandings of what power is, which we'll explore later on. And it's not important right now to appreciate those understandings.But a key point here in the DNA of negotiation is that last point on the slide, your walk-away alternative, your BATNA. There's a fair bit of research on this. And so what is your alternative to a negotiated agreement?If it's close to satisfying your goals, then generally you are in a powerful negotiation position because you don't depend-- you don't rely on this negotiation process reaching an agreement. You can be reasonably satisfied if the negotiation does not end in an agreement. If, on the other hand, you rely or depend on the negotiation reaching an agreement, you tend to have less power. So your walk-away options are not particularly beneficial to you in comparison to what an agreed outcome would be.We'll have a look at, as I said before, power in the negotiation context more fully on another topic. And we'll also have a look in a bit more depth about the notion of BATNA, or your walk-away options, in a bit more depth in another topic.So the next component of the DNA of negotiation is information exchange. We saw with distributive negotiation part of that process is to exchange as little information about your side's position or resistance points or target points as possible. Whereas with integrative negotiation, exchanging information is important because that allows the development of creating options and solutions where both parties' goals or desires can be satisfied.So that's why information exchange is a component of the DNA of negotiation. It's a critical factor in shaping the outcome and to help us identify the characteristics of negotiation, whether we describe it as being distributive or integrative or somewhere in between.So as we had a look at before, information exchange is closely related to reciprocity. The idea is that if we supply information to the other side, they will reciprocate. And they will supply some information to us. And then we supply more information to them. An they supply even further information to us. So information exchange is also related to another component of the DNA of negotiation, which is trust.And the final point on this slide is that, quote, "information is an opportunity, not a weapon." And that's a quote from Ray Fells from one of his studies, a quote from a participant in one of his studies, a business lawyer. So that's the idea. So information exchange with a sort of integrative negotiation attitude sees sharing information as helpful, whereas with a distributive negotiation attitude sharing information is risky and dangerous and should be avoided.The second last of the components of the DNA of negotiation is ethics. Now, again, ethics is one of those topics that we will have a look at in a bit more detail later on in the unit. So we won't dwell on it now. One of the reasons why we don't want to dwell on it is because ethics in negotiation is highly ambiguous.In that sense, there is no general understanding of what kind of behavior is ethical and what kind of behavior is unethical. There is an understanding that any behavior that's unlawful would be automatically unethical. But that's what makes it ambiguous. So a suggestion is that if you apply a distributed negotiation approach, is that unethical because you're concealing information that might be useful to developing a satisfactory outcome for both parties?So obviously-- or not obviously, but generally, most people being untruthful-- most people would assume that being untruthful is unethical. But then is withholding information being unethical? Or releasing information very slowly, the drip-feed approach-- is that unethical?So for our purposes, then, in the context of the DNA of negotiation, two points should be highlighted about the ethics. And one is that-- the second dot point the slide is that if you identify what you consider to be unethical behavior by the other side, you should alert them to that. You could say that this is inappropriate kind of behavior or inappropriate conduct and give reasons because they might not be aware that the way they are behaving is inappropriate or, should I say, quote unquote, "unethical."The final point to mention is the last point on this slide, which is what Ray Fells calls the "publicity test." So if you're in doubt about whether your behavior in a negotiation is ethical or unethical, the publicity tests implies that-- would you be happy if the rest of the world knew about the way you behaved, knew about your conduct?If you would be satisfied or comfortable with the rest of the world knowing about your behavior, then you're probably behaving ethically. On the other hand, if you would be embarrassed or rather not have the rest of the world know about your behavior or have it publicized, then you're probably behaving in an ethically ambiguous way.So just to finalize the topic on ethics, the publicity test builds on your reputation as a negotiator. If you develop a negotiator as someone who's truthful, honest, shares information, then it's likely that other people will be happy or satisfied or willing to negotiate with you. If you develop a reputation as someone who's been deceptive, difficult to negotiate, it's likely that others will one, be reluctant to negotiate with you, or two, tend to be extremely defensive when they do negotiate with you.So the final component of the DNA of negotiation is the outcome. Now, here the outcome-- this has a number of features. One is largely attitudinal, as the first dot point suggests. So at the end, you reach an agreement. And you boast that you won, and the other party lost. That might shape the perception of the other side, thinking, well, this was more of a distributive negotiation rather than an integrative negotiation.We'll have a look at this in a bit more detail in the next topic when we look at the idea of identifying interests and satisfying interests in a negotiation. But the point that Ray Fells wants to highlight with this component, the outcome, is that negotiation doesn't end once an agreement is made. The implementation of the agreement is just as important as to what has been agreed to.So for example, even with a simple exchange or a simple negotiation-- the purchase of a motor vehicle, for example, or the purchase of an electrical appliance-- what are the rights of the purchaser or the buyer after the exchange takes place? If the motor vehicle or the electrical appliance is faulty, what can they do? So it's the implementation of the agreement which is just as equally as important as what is the agreed outcome.

Transcript: Negotiation strategy and tactics

So finally, we conclude this topic by comparing and contrasting the strategies and tactics used in distributive negotiation with those you tend to find in integrative negotiation. So you can see on this slide how they can compare. So we touched on this before.With distributive negotiation, the idea is to supply as little information to the other side about your resistance point, certainly, whereas trying to extract from the other side as much information about what their resistance point is. And so you can see that any information supplied is given grudgingly or reluctantly and is generally only given on what Ray Fells would call a "tit-for-tat basis." If I give you this, then you must supply something else to me, that kind of approach.And you can see that even when you make a concession, it is done reluctantly. And it is often exaggerated about the value of the concession that you're making or the disadvantage that the concession has to you-- so to create something of not a false picture, but a out-of-focus picture of what your real position or your real stance is.So you can see there that distributive negotiation is essentially being competitive, or what Ray Fells would describe as contending. Contrast that with integrative negotiation, and we can see that those kind of behaviors facilitate cooperative negotiation. Just to highlight the first point about climate setting, that essentially is about-- even before you start to negotiate about the substantive issues, the parties have an agreement or a general understanding about the framework in which the negotiation is going to take place.So you can see, comparing and contrasting the two approaches, integrative negotiation is somewhat a mirror image of distributive negotiation-- supplying full information. Looking to have an outcome that satisfies both parties. Focusing on the outcome and not necessarily the negotiation process itself.Being willing to make concessions. Being willing to look at new ideas and look at new options. So you can see there that-- oh, and having respect for the other side's suggestions, the other side's goals, and the other side's desires, whereas with distributive negotiation you tend to belittle or have reduced the legitimacy of the other side's desired outcomes.So you can see why comparing the behaviors of distributive negotiation with the behavior of integrative negotiation-- you can see why they are generally considered to be the two extremes. Distributive negotiation is being competitive. Integrative negotiation is being cooperative or highly cooperative.So earlier on in the topic, we had to look at some of the strategies that might be applied in distributive negotiation. Again, we'll contrast that with some of the strategies or the tactics that might be applied in integrative negotiation.And you can see here there's Lewicki, Saunders, and Minton understanding of the tactics that would be applied. And it's relatively straightforward. And it has three features to it-- identifying the problem, searching for alternative solutions, and then selecting the best solution.So essentially what these three aspects or these three tactics mean-- identifying the problem is, largely, both parties have an understanding of why they are willing to negotiate. So that's the problem. Both parties have-- the problem is there is something they desire that they currently don't have. And they think they can obtain what they desire from the party they're negotiating with. So identifying the problem is clarifying or working out what those resources are.A key point there in identifying the problem, that third point-- depersonalizing the problem. So that's essentially taking emotion out of the negotiation as far as it is possible.It's difficult to do because we're humans. And we're emotional beings. But identifying the problem is a key aspect of that. And we'll have a look at this idea in future topics when you have interest-based negotiation or principled negotiation. And a key aspect of that is focus on the problem, not the person.The second feature of the integrative negotiation tactic is searching for alternative solution-- is having an understanding of what the desired outcomes are. So the first point-- identifying the problem, having a clear understanding or clarifying why the parties are negotiating. Searching for alternatives is, well, how can those problems be overcome? So what are the variations or what are the ways in which those problems can be overcome?And the final feature of the integrative negotiation tactics-- selecting the best solutions. In the second component or the second feature, once you've identified possible solutions that deal with both sides' problems, you then go through a process of identifying those possible solutions that best satisfy each party's desires.A key point to identify or to highlight there is that last dot point in selecting the best alternatives-- is the issue of time. We'll again explore this in more detail in future topics. But time or lack of time can shape the negotiation process and shape the attitude of the parties. So integrative negotiation tends to best apply when there are no time pressures on an outcome. It has its limitations when there are time pressures on an outcome.So just to finalize this topic to end this topic, we've had a look at the difference between integrative negotiation and distributive negotiation. We saw that, essentially, distributive negotiation is being competitive, withholding information, and trying to achieve an outcome that is close to the other side's resistance point as possible.Integrative negotiation, on the other hand, is searching for outcomes that are close to each other's target points as possible. And it's called "integrative" because the desires of the outcomes of the parties conducting negotiation are not in conflict. Therefore achieving those outcomes can be integrated into the negotiation process.And we had a look at Ray Fell's DNA negotiation. And we saw that it's a useful metaphor to understand why no two negotiations are identical. They might is similar. But they're not identical because the components of the DNA negotiation will never be exactly the same.So finally, just to highlight what we'll have a look at in topic three, that's where we have to look in a bit more detail about some of the issues that were mentioned in this topic and how we might be able to identify problems, search for alternative solutions in an integrative bargaining approach. All right. Thanks for your interest.

Module 6 Transcript

Transcript: Negotiation interests

In this topic, we move on to have a look at some of the ways in which negotiation is conducted. And so to understand-- and it develops on what we had a look at in topic two and, more particularly, the integrative approach to negotiation.So many of the issues and behavior we have a look at in topic three generally tend to conform with integrative negotiation rather than distributive negotiation approaches. So there are four objectives in this topic. The first objective is for you to have an understanding of what is the difference between a position in negotiation and what are the interests of the parties in a negotiation.Next we have a look at the concept of differentiation and how that is applied in negotiation. Then we move on to have a look at the next step, which is developing options after the differentiation process. And finally, the last objective is to have an understanding of what is the difference between an offer, a proposal, and a suggestion.So the first thing we need to do is to have an understanding of what is the difference between a position and an interest. Generally, most people would understand negotiation as involving positions. And that essentially means one party makes an offer. And another party either accepts or rejects that offer and makes a counter offer, as that first dot point suggests. My offer is this. You respond saying, but my offer is that.They're positions. They're not interests. Essentially what an interest is is the motivation for the position or the reason why a party made a particular offer. So it's looking at the reason why the negotiation is actually being conducted, as opposed to a position, which tends to mask the reason as to why the negotiation is being conducted.Emphasizing interest in negotiation is not a new idea. It's been around for about half a century. And so interest-based negotiation was part of the process of negotiation described or developed by Walton and McKersie back in the mid 1960s. But it is a key element of the Fisher, Ury, and Patton's understanding or concept of principled negotiation.So interest-based negotiation or interest-based bargaining is a particular approach to negotiation. And it has some characteristics similar to integrative negotiation. But then it has some characteristics that might be separate and unique.As that fourth dot point suggests, the interests of the negotiation parties can take on a number of different forms. They can be convergent, which essentially means that they are shared. If the parties have shared interests, that might suggest that an agreed outcome is more likely.On the other hand, the interests can be divergent. That is that they actually oppose each other. That tends to suggest that the negotiation has characteristics similar to distributive negotiation. Or if the interests are divergent or in conflict, then it's difficult for both parties to satisfy their interests. What would likely be happen is one party would have more of its interests satisfied relative to the other party.Or alternatively, the interests can just be different. That is they are not shared. So they're not common. Nor they are in conflict or in opposition. So if the interests are different, it's highly likely that an outcome that satisfies the interests of both parties could be negotiated.As the last dot point on this slide indicates, identifying the interests of the parties to a negotiation relies on communication. It means that each party must be willing to communicate or share information with the other side so that the interests can be identified and that ideas to satisfy those interests can be developed. So we can see there that identifying interests and interest-based negotiation is related to Ray Fells's DNA of negotiation that we explored in topic two and, in particular, one of the components of the DNA of negotiation, information exchange.Given that interest-based negotiation or satisfying interests is a key element of Fisher, Ury, and Patton's principled negotiation, you should have a look at the two short videos called Getting to Yes-- Introduction and Getting to Yes-- Interests, which are produced and developed by Fisher, Ury, and Patton. And it gives you a better understanding of the difference between the position and the difference between an interest and how helpful understanding interests are in negotiation becomes because that allows the development of options and possible solutions.

Transcript: Differentiation

Having some understanding, then, of the difference between a negotiation position and a negotiation interest, we'll move on and have a look at the concept of differentiation. Differentiation is essentially the process conducted during negotiation to try and fully understand what are the differences, and particularly the differences of interests, between the negotiating parties.So you'll see on this slide that Ray Fells puts differentiation or locates differentiation within these issues, process, action dimensions of negotiation. And that's what this figure or this graphic is meant to represent. So it's an example where the party has adopted a competitive or a firm stance on a particular issue or a particular topic up for negotiation. So they now commence the process of differentiation.So just a reminder that Ray Fells uses the expression "contend" when he means being competitive in negotiation. So in this graphic, you'll see he talks about contending or contendive. He just means being firm or competitive.So you'll see here the issue dimension of differentiation has to do-- it's more of a position. Move on to the actual process. That's where you try and identify not the positions, but the interests. And once you've established that, then you make a decision. Is it worthwhile to continue the negotiation? Or at this stage, should you walk away from the negotiation?So moving on to the action dimension of differentiation, you can see there that that involves information exchange. But because this party to the negotiation has adopted a competitive or a contending approach, the information is revealed slowly or drip fed. So they're still being competitive. Yet they are not revealing their resistance points.So you can see here to some degree that having negotiation that resembles interest-based negotiation doesn't necessarily mean it has to be cooperative. With this example, the negotiation party has adopted a competitive or a firm or contenting attitude. But it still goes through the process of trying to identify what are the differences, the differences in interest between the parties. And that's done through a process of information exchange.So the result of the differentiation phase of this particular negotiation you can see there in the outcome dimension. And that's where the parties make a decision. Given they now have a better understanding of what the interests of both parties are, they can make a decision about whether it's worthwhile or beneficial to continue the negotiation. Or should they will walk away because it is unlikely that their interests will be satisfied by any negotiated agreement?So the differentiation phase of negotiation can be a demanding task, particularly, as the first dot point on this slide suggests, if you have adopted a competitive or contending attitude to the negotiation. If you have adopted a more cooperative approach, then differentiation is more straightforward because of the relative ease in which the information of the two parties or the negotiating parties is exchanged and therefore the quicker and more and more clarity is involved in identifying the interests of the negotiation parties.So if we have a look at table 6.4, which is from the Fells textbook, you can see there what Fells describes as helpful and unhelpful behavior during the information exchange process. Just remember that this is still based on a negotiation approach that is competitive or contenting or being firm. So the behavior that's helpful in table 6.4 wouldn't be the same if the negotiating party had adopted a more cooperative or integrative style of negotiation.So two key points to highlight in table 6.4 is if you have a look at the list of unhelpful behaviors, you can see there how they are connected with Ray Fells's DNA of negotiation, particularly reciprocity, building trust, et cetera. And you can also see with the list of helpful behaviors is the notion of continually summarizing both parties' understanding of where the negotiation is at that particular point in time so that both parties have a clear and same understanding of what the interests are, what options can be possibly developed, and what is the range in which an agreement might be-- the outcome.So to conclude on the issue or the topic of differentiation, you see in this slide table 6.6 from the Fells textbook that summarizes the differentiation process with the issue dimension and the differentiation process-- or the differentiation in the process dimension. And you see with the issue dimension it's part of the information exchange. So when the other side is supplying information to differentiate or understand what the differences of interests of the parties are, they might express that more as a position rather than an interest.So to explore in more depth what the other party actually desires from the negotiation, you should on a regular basis ask why. Why did they say that? What did they mean by that sort of thing? And that way you can have a better understanding of what kind of outcome they would like from the negotiation, what kind of outcome is possible, and what are their interests.Moving on to the process dimension of differentiation, we can see that reciprocity is a key aspect of it. So if you behave in a particular way, it is likely that the other side will behave in a particular way, which can be either helpful or unhelpful to differentiating or having a better understanding of what the differences between the two parties are. And again, a key point here is to, on a regular basis-- is to pause and summarize what the understanding of the differences between the two parties are, what the understanding of the expectations from the negotiation are, and what is the understanding of the range of possible outcomes.So just to conclude on differentiation, differentiation is more about understanding the interests of the parties rather than the position. It can still be done in a competitive negotiation. And finally, differentiation allows the parties to make an informed decision about whether they should continue the negotiation or end it and walk away.If the differences between the two parties are so extreme or if the interests are in direct conflict, the likelihood of reaching an agreement that satisfies either parties' or both parties' interests is unlikely. And it would be advisable to end the negotiation and walk away.

Transcript: Exploring options and exchanging offers

So we now move on to the next phase of negotiation. Once we finish differentiation, once we've identified what the differences in interests of the negotiation parties are, and once we've made a decision to continue the negotiation even with that knowledge of what the interests are because we think there is a likelihood that we can have an agreement that satisfies most of our interests and most of their interests, we then move on to the next phase, which is exploring options, or the exploration phase.A key point here is that the exploration phase is the process where both parties try to develop what are the ways in which the interests of the negotiation parties can be satisfied in an agreed outcome. As the first dot point suggests, exploration is not a process that should be rushed into. We should fully complete the differentiation phase and have a solid or sound understanding of what the other party's interests are and a solid or sound understanding of whether an agreement that would satisfy your interests is likely or not.Once again, Ray Fells puts the exploration phase within his issue, process, action framework, which we'll have a look at in a minute. And you can see that in the textbook.So the exploration phase in negotiation fits in between differentiation, which is done before exploration, and packing proposals. If you recall from topic two, package proposals, I guess, would be very similar to the strategy identified for integrative negotiation called "selecting the best alternatives."An important point to appreciate in the exploration phase is that-- it's highlighted in the last point on this slide that to successfully navigate the exploration phase, your motivation to reach an agreement has to be stronger than your motivation to maintain your own demands. So that means you must entertain a willingness to make some kind of concessions in order to facilitate a negotiated agreement. If you are not willing to do that, then you shouldn't be progressing to the exploration phase. You should perhaps have spent more time dealing with the differentiation phase or perhaps even consider ending the negotiation and walking away.It's important to appreciate during the exploration phase that much of the discussion is informal, informal in the sense you're only developing options for an agreed outcome rather than firm offers for an agreed outcome. So given that these are informal discussions, or less formal discussions, you don't need to abandon, as the first dot point suggests, your original negotiation targets or desired outcomes. You must have some willingness to vary them or to make compromises or concessions, but not at this stage because the discussion is just developing ideas so that options can be created that may or may not be pursued or developed more fully.So what do I mean when I say the exploration phase is largely informal? It's to some degree emphasized by the second dot point on this slide-- is that this is the process where the parties develop proposals and/or suggestions. They're not developing offers and counteroffers. So a proposal, in that sense, is just an idea or an option that the other party might consider. It may or may not be part of the negotiated outcome.So proposals are just that. They have very fuzzy status. They don't make any binding commitments on the party offering the proposal or a binding commitment on the other party that entertains or is willing to accept some or all of the proposal. So their status is very informal.Suggestions, on the other hand, are even more informal. So a suggestion in a negotiation tends to be something like, if we were to do this, would you be willing to do that? So they even have a list of the status-- the suggestions have a list of the status and proposals.So just to clarify that point, proposals and suggestions don't make or place any obligation on the party making the proposal or suggestion. And they don't place any obligation on the party accepting or entertaining some or all of the proposal or suggestion.Moving on to the third dot point of this slide is an important point to appreciate. Negotiation involves more than one party. So this is where we saw in topic two that a key element or a key skill in negotiation is the capacity to listen, not just present information or present ideas. It's also to receive them.So the exploration phase is shaped by both sides' behavior. And given that none of us have a monopoly on wisdom-- and in negotiation, some parties or some individuals might be more experienced than others-- then the proposals or suggestions offered by the other side might make a major contribution to developing solutions for a negotiated outcome. So what the other side has to say during the exploration phase is equally as important as anything that our side is willing to suggest or propose.Moving on to being fourth dot point on this slide, as mentioned before, the exploration phase is an informal process. So it's a bit of a balancing act or a bit of an art to keep the negotiation alive yet, at the same time, not be prepared to make too many concessions about your predetermined goals or target points. And that's not easy.But if you recall, you shouldn't enter the exploration phase unless your motivation to reach an agreement is greater than your motivation to maintain your own demands. So in that sense, then, that fourth dot point is largely saying that 80% of something is better than 100% of nothing.So this is, in an exploration phase, how you keep the negotiations on track without jeopardizing your desired outcomes and without placing the negotiations in the direction of a deadlock or an impasse can be influenced by the language that you use or that we use during this phase. So helpful language is words like "likely," "helpful," "possible," maybe as the kind of responses we make to the other side's proposals and suggestions.We wouldn't use language like "no," "never" because that cuts off the options that are possibly developed during the exploration phase. So we want to keep the options alive. We don't want to kill them off before they can be developed into possible solutions or outcomes.Just to end the overview of the exploration phase of negotiation, just remind ourselves that this is a largely informal process. We're not making formal offers or exchanging formal offers. We're developing ideas that could be converted into formal offers by making proposals, offering suggestions, and developing options from those proposals and suggestions.So we'll see here on this slide is table 7.2 from the Fells textbook and how the exploration phase fits into his issue and process dimension of negotiation. So look at the issue dimension. And there's a few important things to highlight.It's where the parties exchange information so that they have a good understanding of why a particular issue or why that particular topic is important to them. And in what way is it important, too? So that's a key feature or a key aspect that exploration allows for both sides to state and restate why this issue was important. And then maybe options or suggestions can be proposed to satisfy or that meet the motivation for that importance.As I mentioned before, when proposals or suggestions are made, they should be kept alive. And that can be done by the kind of language that is used, as mentioned before. Well, that's helpful. That's possible. We could work with that. That has some merit, that kind of language.Another approach or aspect of the issue dimension-- the last few comments in the column-- that has to do with if one party makes a suggestion or a proposal, there might be discrete elements or discrete parts of the proposal or suggestion that are more helpful to satisfy your interests than other parts of the proposal.And that's where you could indicate, why don't we work on there? There's a possible solution with this part of the proposal. And we might come back to the other parts of the proposal that at this stage seem to be not helpful developing solutions through an agreed outcome.Moving on to the next column in table 7.2, the process dimension, you can see, again, that emphasizes that the exploration phase is just trying to develop possibilities of an agreed outcome rather than specific offers which may or may not shape an agreed outcome.Another point to highlight there is to ask reasons or supply reasons. So if one of your proposals or offers is rejected by the other side, then you ask, why would they reject it or not entertain it or be reluctant to entertain it or consider it? Likewise, if you are reluctant to entertain or consider a proposal or suggestion from the other side, you should be willing to supply reasons because that facilitates development of options and possible solutions to the negotiated outcome.Once more, as we saw with the differentiation phase, during exploration, the parties should regularly summarize where they actually are. What proposals are alive and currently being developed? And what proposals are not going anywhere and unlikely to form a part of a negotiated outcome?So just to conclude the discussion of the exploration phase is that this is the phase in which idea are proposed. Ideas are suggested. And ideas are developed that can be converted into firm offers, which would be the next phase of the negotiation, the exchange of offers.So just to end topic three, we had a look at the difference between what a negotiating position is and what an interest is. And we saw that, essentially, an interest is the reason or the motivation why any party has a position. And negotiations that focus on positions are more likely to deadlock than those negotiations that focus on satisfying the interests of the parties.We then had a look at two phases in negotiation, the differentiation phase and the options phase. And again, they rely on-- or the success of differentiation and the success of developing options rely on a clear understanding of what the interests of the negotiation parties are because that's the way you can develop options and solutions and then make formal offers that help satisfy the interests of both parties.So finally, just to introduce to what the next topic is, we have a look at constituency-based negotiation, which is a key part of workplace negotiation or collective workplace negotiation. But constituency negotiation is not just restricted to collective negotiation in the workplace.The final point to mention on this topic is that if you have the opportunity, have a look at the section of the Getting to Yes video Developing Options. That might be useful. All right. That's the end of topic three. And thank you for your interest.