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In a Harvard social experiment, a librarian was asked to shut down all but one of the available copying machines. With only one copying machine in operation, a long queue soon formed at the only working machine as students were eager to do their copying. The social experiment involved getting people to try to get others to allow them to cut in front of them and get the copying done first.

The first group were instructed to simply ask: “I have five pages, may I cut in and use the copying machine?”. In sixty percent of these cases, the people in line allowed the one who made the request, to go first.

Another group was instructed with a small but important variation of the first request and ask: “I have five pages, may I use the machine because I have to make some copies?” The only difference being that the second request included a reason “because…”, even though the reason was the same as the others in line, presumably. The results of this request was that ninety three percent of the people approached, allowed the requester to cut in line. The finding suggests that people are more likely to respond to reason and rationale rather than unreasonable and imposed demands.

I recently had the opportunity to visit the Smithsonian National Museum of the American Indian in DC. I went specifically to see an exhibit that I was told about called “Nation to Nation: Treaties Between the United States & the American Indian Nations”. From a negotiation scholar perspective, I found it not only enlightening from the US historical standpoint, but perhaps even more so from an international relations standpoint and specifically a better understanding of international treaties and treaty negotiations.

One insight that emerged for me during that visit was the difference between an agreement and a treaty. An agreement is a legal document which states and defines legal obligations, considerations, warranties and covenants between the parties, and is sustained by the rule of law and enforced through judicial consequences. (Or in cases of international law, by the United Nations charter and the International Court of Justice). A treaty, on the other hand, is not only a legal agreement, but goes way beyond that, in that it also defines the desired relationship between the parties. It is sustained not only by the rule of law, but moreover by trust, honesty and integrity. In addition to being a legal agreement, it is also very much a moral one too.

What further struck me in seeing that exhibit was how differently the United States viewed treaties as compared to the American Indian Nations.

Today, the Scottish people go to the polls to vote a “YES or “NO” on the secession of Scotland from the United Kingdom. Either outcome is wrought with serious problems. If the vote is “NO”, a large portion of the Scottish population will feel resentful knowing that this might be the last opportunity for generations, and demonstrations and riots are not out of the question. If the answer is “YES”, there will be resentment on the part of England. This will be very serious for Scotland too, as there will still be many complex issues to negotiate with a resentful Westminster as a partner.

These issues will include; currency union; banking and financial services; Scotland’s responsibility to the UK’s national debt; National Health; European Union membership (currently Scotland is a member only by England’s shirttails); borders and immigration; monarchy; and defense (involving amongst other things, the UK Trident nuclear deterrent currently based in Scotland).

These negotiations are likely to take a minimum of two years and will be acrimonious and messy. Did England sleep instead of preempting and possibly averting the current crisis?

Ganavia and Gezlique have been arrested for robbing the Mamonia Savings Bank and placed in separate isolation cells. Both care much more about their personal freedom than about the welfare of their accomplice. A clever prosecutor makes the following offer to each. “You may choose to confess or remain silent. If you confess and your accomplice remains silent I will drop all charges against you and use your testimony to ensure that your accomplice does serious time. Likewise, if your accomplice confesses while you remain silent, they will go free while you do the time. If you both confess I get two convictions, but I’ll see to it that you both get early parole. If you both remain silent, I’ll have to settle for token sentences on firearms possession charges. If you wish to confess, you must leave a note with the jailer before my return tomorrow morning.”

The “dilemma” faced by the prisoners is, that whatever the other does, each is better off confessing than remaining silent. But the outcome obtained when both confess is worse for each than the outcome they would have obtained had both remained silent.

This dilemma is created by the fact that neither prisoner can communicate with the other, and therefore there is no trust or strategy of collaboration. This leads to a sub-optimal outcome of both being convicted and sentenced to a long time in prison whereas had they been able to communicate, build trust and devise a strategy of collaboration they could have both received far lighter sentences.

Whether you are an attorney advising your client, a company or an individual embroiled in a dispute, it is necessary to understand the different processes of dispute resolution and determining which is the right process for your particular situation.

In ascending order of cost, time and adversity, the various processes for dispute resolution are: Negotiation; facilitative mediation; evaluative mediation; arbitration; and litigation. As we move along this continuum from negotiation towards litigation, the process becomes more costly, takes longer, and moves from diplomacy towards outright war.

In this column, I will address only the cardinal points on the continuum which are mediation, arbitration and litigation. I will explain the processes and when it is appropriate to use each.

As long as we are active participants in the world around us, be it socially, professionally, commercially or diplomatically, we are always negotiating. At home it might only be about what movie to watch, and with friends it might be about where to meet for dinner – easy and low risk negotiations to be sure, and often, in these social contexts, we are not even aware that we are negotiating.

However, when we get to the professional, commercial or diplomatic context, negotiations assume a significantly more conscious and deliberate effort due to the potential opportunities and high risks involved. They may be partnership agreements, or about professional services and fees, or perhaps the sale and delivery of goods. They may even involve nuclear non-proliferation treaties or serious international boundary disputes.

In these situations, we are very aware that we are negotiating and take it very seriously. Good negotiators will typically have a systematic methodology that they apply regardless of what the context and object of the negotiation might be. In this column, I would like to share with you a basic systematic approach that you can apply to any negotiation you are currently involved in, or may be in the future.

Very often, in both civil disputes and international conflict, we find that after all efforts in negotiation have been exhausted and have failed dismally, the dispute goes to mediation where it is magically resolved. Since mediation is defined as “assisted and facilitated negotiation”, one must ask what is it about the process of mediation, and the skills of the mediator that can help to resolve a dispute that appeared intractable during negotiations? What additional ingredients are added to the mix that were missing before mediation and appeared to make all the difference? Why and how do the dynamics change once a third neutral party is introduced?

Although there is a range of forces at work and a variety of techniques and disciplines at play when a skilled mediator enters the fray, I will highlight but a few in this column. My intent is to educate the discerning public and to instill confidence on the part of the consumer, in mediation, as a very viable, effective and efficient alternative in the dispute resolution process continuum.

Recently, talks have been convened in Geneva towards negotiating a workable agreement between the Assad regime in Syria and the opposition. According to Al-Monitor, a daily news publication out of Lebanon, claiming to monitor the pulse of the Middle East: “UN and Arab special envoy, Lakhdar Brahimi does not seem very optimistic. Even though he keeps trying, he considers his chance of success to be no more than 10%”.

I believe that Brahimi is being overly optimistic in estimating the chances of success at 10%. I would give it a 0% at this point because there is crucial and rigorous pre-negotiation groundwork that is necessary before serious negotiations can begin, and which will obstruct any productive movement as long as it is being neglected.

Observing diplomatic events, international crises and foreign policy implementation, provides excellent opportunities for the study of negotiation. The recent events in Syria are certainly no exception. The actors in this particular scenario, Assad, Obama and Putin all played their characters so well that, but for the tragic loss of human life and the serious erosion of US credibility and diplomacy, it is hard to believe that this was not a scripted Shakespearean comedy!

Although the lessons of this particular crisis are many, in this column I shall highlight three that we can all apply to our own negotiations.

In the United States, business is based primarily on law, contracts, rules and regulations, and very secondarily on trust and relationships. In most other countries and cultures, business is based primarily on trust and relationships and secondarily, on law and contracts. For example, we are currently doing significant business in Europe with no signed contracts, just email memos between the parties. We trust each other and value that trust sufficiently that no one wants to risk losing it which is what contributes to the durability of the agreements and relationship.

In America, we put our trust in the judicial system abrogating any need for personal relationships and trust. In describing the United States approach, Jonah Blank in Foreign Policy Magazine (June 3rd 2013) puts it well when he writes: “Americans view a deal in coldly contractual terms: You give me this, I give you that in return, we shake hands and may never see each other again. Americans buy cars from complete strangers and refinance houses with banks that are bankrupt. This can be done because there is trust in the overall system: rule of law, functioning courts, policemen accountable to the public rather than the local warlord. The system gives Americans the confidence to entrust their credit card numbers to call centers staffed by prison inmates. (You didn’t know that? Yes, it’s true.)”

While strong arguments could be made in favor of both the legal/contractual based system of commerce and the trust/relationship based one, the legal/contractual based system falls short however, and becomes costly, cumbersome and inefficient when a dispute arises.