Principles of Alternative Dispute Resolution
Author:
Ware, Stephen J.
Edition:
3rd
Copyright Date:
2016
10 chapters
have results for negotiation
Chapter 3. Negotiation 237 results (showing 5 best matches)
- Dispute negotiation is more likely than transactional negotiation to be , that is, negotiation in which the better a deal is for one party, the worse it is for the other party. In addition, dispute negotiation is less likely than transactional negotiation to involve parties who want or expect their relationship to continue after the negotiation. Both these factors tend to make dispute negotiation typically more adversarial and competitive than transactional negotiation, which tends to be more cooperative and problem-solving.
- Approaches to negotiation are as varied as negotiators themselves. Therefore, any attempt to categorize approaches to negotiation must make generalizations that do not always hold true. Furthermore, different negotiation theorists use different terms to describe similar approaches to negotiation. No single set of words to describe the major approaches to negotiation has gained a consensus.
- While settlement negotiation is conducted in the shadow of the law, the same is not true of other dispute negotiation. Ordinary day-to-day disputes among family members, co-workers, etc., will never be the subject of a court’s judgment. Accordingly, negotiation of these disputes occurs beyond the shadow of the law. Therefore, the law shapes most dispute negotiations very little but shapes a few of them very much. Those few tend to be the dispute negotiations involving lawyers.
- negotiation, a helpful metaphor is the contrast between dividing a pie and expanding it. In zero-sum negotiation, negotiators discuss only how to divide a pie, while in positive-sum negotiation, negotiators find ways to expand the size of the pie. In many negotiations, the negotiators both expand the pie and divide it. In other words, many negotiations have both a positive-sum part and a zero-sum part. Other negotiations are purely zero-sum. Few, if any, are purely positive-sum.
- Negotiators do not have complete control over whether their negotiation is zero-sum or positive-sum. The parties’ interests may be so diametrically opposed that their negotiation must be zero-sum, no matter how sincerely the negotiators seek to find a positive-sum aspect to it. On the other hand, the parties’ interests may present opportunities for positive-sum negotiation that go unexploited because the negotiators do not find them. In such a case, a zero-sum negotiation occurs in a positive-sum situation. To put it another way, positive-sum situations can yield either positive-sum or zero-sum negotiations, while zero-sum situations can yield only zero-sum negotiations. A zero-sum negotiation in a positive-sum situation is not necessarily a failure because the value created by exploiting a positive-sum opportunity may be lower than the value of the time and effort required to find it.
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Chapter 1. Introduction 29 results (showing 5 best matches)
- Binding results can be produced by mediation (and other processes in aid of negotiation) in the same manner that binding results can be produced by negotiation, by forming a settlement agreement. Also like negotiation, a process in aid of negotiation that does not produce a settlement agreement produces no legally-binding result. Mediation and other processes in aid of negotiation require a contract to be binding.
- Negotiation is sometimes said to be a non-binding process. But negotiation can lead to legally-binding results. Negotiation often produces an agreement between the disputants and that agreement is often legally-enforceable. Settlement agreements are binding. Like court judgments, settlement agreements are enforced, ultimately, by sheriffs and marshals with guns and badges. By contrast, negotiation that does not produce a settlement agreement produces no legally-binding result. In short, a contract is required to make negotiation binding.
- All other ADR processes (negotiation and processes in aid of it) are incapable of becoming the default process. However, negotiation and processes in aid of it are often heavily influenced by the default process. The following paragraphs, which explain that influence, are phrased in terms of negotiation, but their reasoning also applies to processes in aid of negotiation, such as mediation.
- Most dispute negotiation occurs without the involvement of lawyers. For example, disputes among family members or co-workers are generally resolved by the disputing parties negotiating on their own. Only a small fraction of disputes ever come to the attention of lawyers and many of these disputes go to binding Thus, lawyers are likely to be involved in only the negotiation of a narrow class of disputes: those in litigation or arbitration, or those that are likely to go to litigation or arbitration if negotiation fails to reach a settlement. Negotiation of these disputes is commonly called
- So defined, negotiation is pervasive. Nearly everyone negotiates the resolution of disputes. Lawyers do so especially frequently. Negotiation is the most commonly used process of dispute resolution and is the foundation for other important processes, including mediation.
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Chapter 4. Mediation and Other Processes in Aid of Negotiation 71 results (showing 5 best matches)
- negotiation. Positive-sum negotiation finds those possible settlements that are better Positive-sum negotiation expands the pie, in contrast to zero-sum negotiation which divides it.
- Negotiators, whether negotiating or mediating, do not have complete control over whether their negotiation is zero-sum or positive-sum. The parties’ interests may be so diametrically opposed that their negotiation must be zero-sum, no matter how sincerely the negotiators seek to find a positive-sum aspect to it. On the other hand, the parties’ interests may present opportunities for positive-sum negotiation that go unexploited because the negotiators do not find them. In such a case, a zero-sum negotiation occurs in a positive-sum situation. To put it another way, positive-sum situations can yield either positive-sum or zero-sum negotiations, while zero-sum situations can yield only zero-sum negotiations. Having a zero-sum negotiation in a positive-sum situation is not necessarily a failure. The value created by exploiting a positive-sum opportunity may be lower than the value of the time and effort required to find it.
- Positive-sum negotiation finds those possible settlements that are better negotiation expands the pie; zero-sum negotiation divides it. Positive-sum opportunities are exploited by negotiators who use the approach to negotiation.
- Because mediation is “negotiation plus,” one’s understanding of mediation typically builds on one’s understanding of negotiation. Therefore, the reader may wish to read or skim Chapter 3, which discusses negotiation, before reading this chapter.
- Mediation has advantages over negotiation in all kinds of disputes, positive-sum and zero-sum. Some cases present opportunities for negotiation, that is, for finding those settlement terms that are better for both parties than other settlement terms. Such cases tend to be those involving issues other than, or in addition to, money and such cases tend to involve Positive-sum opportunities may go unexploited in negotiation because negotiators often have strong incentives not to reveal their underlying interests and priorities. mediator, can alter these incentives to facilitate positive-sum negotiation. In short, mediation can expand a pie that negotiation would only have divided.
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Note to Teachers 5 results
- The conceptual reason for putting arbitration before negotiation and mediation is that arbitration is the only ADR process that can produce legally binding results without a post-dispute contract. From the post-dispute perspective then, either arbitration or litigation is the default process, the one process capable of producing a legally binding resolution without further agreement between the parties. None of the other major ADR processes (including negotiation and mediation) is capable of achieving this status, that is, of being the post-dispute default process. Furthermore, negotiation and mediation are often heavily influenced by the default process. That is because negotiators’ expectations about the results of litigation or arbitration shape the negotiators’ attitudes toward various settlement terms. In other words, the default process casts the “shadow of the law.” Whether that shadow is being cast by litigation or arbitration can make an enormous difference. Consider, for...
- In sum, I encourage ADR teachers to consider teaching arbitration before negotiation and mediation. Alternatively, instructors can easily use this book in a course that covers arbitration after negotiation and mediation by simply assigning Chapters 1, 3 and 4, before turning to Chapter 2.
- Whatever the format of an ADR course, the instructor must consider how to organize the material to be covered. Notably, this book covers arbitration before negotiation and mediation. While many ADR books cover arbitration after negotiation and mediation—and I taught ADR that way for several years—I switched my ADR course to the “arbitration first” format and find that it generally works better for two reasons: one pedagogical, the other conceptual.
- The pedagogical reason for putting arbitration first is that the negotiation and mediation portions of an ADR course tend to involve less doctrine than the arbitration portion of the course. So the negotiation and mediation portions of the course have more role-playing exercises and more open-ended class discussions. When these experiences dominated the early portions of my ADR course, many of my students resisted a late-in-the-semester transition to what has been aptly called the “traditionally demanding feel” of the arbitration portion of the course, with its “[t]ough cases and hard questions.” By contrast, I have found little mid-semester resistance to a transition from arbitration to negotiation and mediation. I think it is analogous to how my children easily make the transition at dinner from eating vegetables to eating dessert. By contrast, if I was to let them eat dessert first, I suspect they would be more resistant to eating their vegetables.
- • Harvard Program on Negotiation http://www.pon.harvard.edu/store/
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Table of Contents 24 results (showing 5 best matches)
Summary of Contents 2 results
Index 25 results (showing 5 best matches)
Preface 1 result
- This book surveys ADR—arbitration, negotiation, mediation, and other processes of dispute resolution. This book is written with one overriding goal, to serve as a clear and reliable statement of the law and concepts central to ADR. So this book should be useful to lawyers and scholars researching ADR.
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Chapter 2. Arbitration and Similar Processes 6 results (showing 5 best matches)
- “Perhaps the really distinguishing characteristic of the agent is that he represents his principal contractually, which means that, given proper authorization, the agent makes contracts or conducts negotiations of a business nature on behalf of his principal and by which his principal is bound.” William A. Gregory, The Law of Agency and Partnership 113 (3d ed.2001).
- Gary B. Born, International Commercial Arbitration 710 (2009) (“Article II was added to the Convention in the closing days of negotiations. Little drafting attention was given to the Article.”)
- If these negotiations fail, the union and employer may agree to send to arbitration the question of what the terms of the new CBA should be. Interest arbitration is a process for selecting contract terms, while grievance arbitration is a process for determining whether there has been a breach of those terms. Arbitration could be used as a process for selecting the terms of non-labor contracts, but it is not so used. Interest arbitration is used almost exclusively in the labor context, especially in the context of government employment.
- With the seat’s arbitration law governing all this, a lot can turn on the choice of seat. Thus, that choice may be a topic of negotiation at the time a contract is formed. “Parties frequently choose a seat of arbitration in a country where neither party’s business interests are located. In addition, the seat may be chosen simply because it is convenient to both parties.”
- Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment. Without pushing the analogy too far, the agreement may be likened to the tariffs established by a carrier, to standard provisions prescribed by supervising authorities for insurance policies, or to utility schedules of rates and rules for service, which do not of themselves establish any relationships but which do govern the terms of the shipper or insurer or customer relationship whenever and with whomever it may be established.
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Acknowledgments 5 results
- Donald G. Gifford, Legal Negotiation: Theory and Applications 96 (2d ed.2007), reprinted with permission of West Academic.
- Stephen B. Goldberg, Frank E.A. Sander, Nancy H. Rogers & Sarah Rudolph Cole, Teacher’s Manual, Dispute Resolution: Negotiation, Mediation, and Other Processes (4th ed.2003), with permission of Wolters Kluwer Law & Business.
- Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo.L.J. 1789 (2000).
- G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People 29 (1999), published by Viking Penguin, a division of Penguin Group (USA) Inc.
- Laurie R. Weingart, et al., Tactical Behavior and Negotiation Outcomes, 1 Intl.J.of Conflict Mgt. 7, 9–10 (1990).
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- Publication Date: September 23rd, 2016
- ISBN: 9781634595742
- Subject: Dispute Resolution
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: Provides a clear and reliable statement of the law and concepts central to ADR (arbitration, negotiation, mediation, and other processes). Its thorough coverage of arbitration law renders this challenging and rapidly-changing body of statutes and case law accessible to the student or lawyer. The chapters on negotiation and mediation treat the subjects from the perspectives of theory, practice, and legal doctrine.