Negotiating With Someone Who Says "No" to Your Proposal

William Ury's well-respected book, Getting Past No receives a nice summary and application from Alex Craigie (At Counsel Table) here. 

  When negotiating with difficult people:
1. Put your emotions aside,
2. Listen to your counterpart's position well enough to state it back to your counterpart,
3. Reframe the dispute by recasting what your counterpart says in a form that directs attention back to the problem of satisfying both sides’ interests,
4. Make it easy for your counterpart to say yes if you can persuade your counterpart–overtly or covertly–that your proposal or goal is actually your counterpart's idea,
5. Make it hard for your counterpart to say now by showing your counterpart the alternative is if an agreement is not reached. As Alex Craigie says: "Here are three reality-testing questions Ury likes:

1. “What do you think will happen if we don’t agree?”
2. “What do you think I will do?”
3. “What will you do?”

Ury acknowledges that this won’t always work.  He reminds us of one of the most important concepts from Getting To Yes, formulating your own Best Alternative To A Negotiated Agreement (BATNA). Before you resort to actually implementing your BATNA, Ury suggests “you should let your opponent know what you intend to do. You want to give him a chance to reconsider his refusal to negotiate.” (Id. at 117.)"

Richard Posner on Sealing Settlements

Seventh Circuit Judge Richard Posner is arguably the most influential figure in the Law & Economics movement and perhaps the most influential non-Supreme-Court judge of our era.   Writing for the Seventh Circuit, Judge Posner rejected a pair of requests to keep two unrelated settlements under seal, explains Jacob Gershman of the Wall Street Journal's Law Blog here.  

Martha Neil at ABA Journal explains the lessons: (1) don't attach to a public filing the document you are asking the court to seal and (2) when the plaintiff is a minor courts may scrutinize how much of the settlement payment goes to the minor and how much goes to the minor's lawyer.  As Judge Posner writes: "An outsider to the litigation could not evaluate the dispute over the district judge’s modification of the settlement without knowing the amount of the settlement (including fees and costs) before and after the modification.  That is information important to future negotiations over attorneys’ fees in cases in which the plaintiff is a minor; and no good reason—in fact no reason at all—has been given for thinking that concealment of the information would serve some social purpose."

Judge Posner's blog, with Nobel Prize winning economist Gary Becker, is a good read.

Mediation Advocacy

These tips on mediation advocacy are aimed at plaintiffs' lawyers but are widely transferable.

Examples: "Don’t reveal your bottom figure too soon, even to the mediator."

"Be patient. Most large cases do not settle quickly. It may take more than one session."

Your client's "anger will create an impediment to settlement. In addition, your client may not understand why her lawyer is candidly admitting weaknesses."

These tips for lawyers representing clients in mediation are by Roger Booth via Donna Cole.

Court Orders Party to Pay Due to its (Bad Faith?) Participation in Mediation

If a party required to participate in mediation does not do so in a way the court approves, can the court order that party to pay?  This question raises several big issues.  First, what source of law or agreement required the party to participate in mediation?  Did that legal requirement specify what exactly the party must do in mediation? E.g., just show up? Participate constructively?  Make generous offers?  Then if that party allegedly breaches that duty (according to the mediator or opposing party) will the confidentiality of mediation prevent that allegation from reaching the judge?   And if the judge does hear that allegation and concludes it has merit, what remedy will the court order?

These important and interesting issues are posed by a recent Ontario case in which a court ordered a party (an insurer) to pay due to its "sham" participation in mediation.  An excellent analysis by Canadian mediator Rick Weiler is here.  Mr. Weiler writes "Mediation is all about party self-determination. If an insurer, compelled to attend mediation, has decided for whatever reason that it doesn’t wish to settle the case (at least at the numbers being demanded by the plaintiff) should its conduct at the mediation attract cost sanctions? I think not."

22 Tips to Improve Your Negotiation Skills

22 good negotiating tips from Karrass.  Among them:

"If you get people angry, they will get even by rejecting your message, even when it is good for them." and "The Chinese say, 'Time brings things in slow degrees.'  The skilled persuader starts early and lets acceptance time, repetition, and logic do the job by slow degrees."  Fits right in with yesterday's post on patience as a virtue in negotiation.

Patience is key to life’s endless negotiation

The Financial Times is my favorite daily publication for many reasons.  Among them are columnists like Luke Johnson.   Here he provides nice examples supporting "two of the golden rules in negotiating a deal: be patient and do not get emotionally involved." 

So much easier said than done! 

And why it's often very helpful for a negotiators to part of a team -- so teammates can catch each other from being impatient or too emotional.

Planning for Mediation or Negotiation

Karrass makes thoughtful points about planning the facilities and seating for mediation or negotiation. "Never allow the other party to place you in an uncomfortable chair or one facing the sun.  The shape of the table is important.... "  "It is essential to have nearby conference rooms to allow each side to discuss strategies in private."  "Check in advance whether the lighting and audio aspects of the room are adequate."

When Is A Dispute Ripe for Mediation?

Bill Marsh at Kluwer Mediation Blog says "Professor Bill Zartman refers to two criteria as defining 'ripeness' for mediation:
1. A mutually-hurting stalemate; and
2. An impending crisis."
       That concisely expresses a lot of truth, IMHO.  As does Bill Marsh's statement: "There are many modern day equivalents to the king’s threat of “hanging”. In a litigation context, the usual equivalent is a trial – although that is often not perceived (at least in advance) as a mutual suffering in quite the same way as both Lords being hanged! It does serve to make the point, however, that the context in which settlement discussions take place is a central aspect of the judgment calls which parties make."

Andrea Schneider on Plea Bargaining

Marquette Law Professor Andrea Schneider on plea bargaining here at the ADR Prof Blog.  She cites a recent Human Rights Watch report and her study in describing plea bargaining as a "negotiation system that is fundamentally flawed."  The New York Times story she cites: "Prosecutors respond that using leverage to obtain plea bargains with clearly guilty defendants is a sound way to conserve resources and obtain cooperation."  "William G. Otis, an adjunct professor at the Georgetown University Law Center and a former federal prosecutor, said that the reason defendants were in a poor bargaining position was not a result of prosecutors’ abuse, but because “there is solid proof they committed a crime.”

Positions v. Interests

A good summary of the distinction between positions and interests.  Thanks to Cinnie Noble
at Mediate.com

Mediation Can Be Too Early

Mediation Can Be Too Early in a Dispute, says Geoff Sharp.  "Conventional wisdom says settle your disputes as early as possible" but there's a risk of "pushing people through the doors of the mediation room too soon… before the dispute is mature, before the raw edges have been rubbed off.
The risk is that parties come to the table without adequately defining to themselves, and each other, what the dispute is all about – what it is they agree and disagree upon and without adequate document exchange (and to be honest without adequately spending time in the conflict and all that doing that brings with it)."  Wise words from Geoff Sharp at the Kluwer Mediation Blog.

Should Negotiators Defer Details Until Reaching Agreement on Principles?

Karrass rightly says "Agreement on details is made easier when an agreement in principle has been achieved.  When talks on details break down later, the opposing negotiators can maintain momentum by returning to the principles previously agreed to."  Often better for negotiators to ignore the details until they agree on basic principles.  Sometimes that works beautifully because details can be easily deduced from principles.  On the other hand, sometimes parties deadlock on opposing principles.  In these cases, negotiators might find they can actually agree on details even though they start from different principles.

Cupcakes, glucose depletion, negotiation and mediation

Dan Green at the Negotiation Blog says eating cupcakes will make you a better negotiator.  He cites some of the serious scholarly research.  Coincidentally, I am currently studying that same vein of research for a project with Scott Simpson, with whom I co-authored this piece.

Negotiators are not willing to trade some goals for money

Frank Rose writes in the New York Times' interesting "Gray Matter" series that, when "Faced with mundane choices, people will readily alter their behavior in response to money."  On the other hand,   "When sacred values are in play, studies show, any proposal of economic incentives to make a deal is liable to backfire."  Financial incentives can trigger "intensely negative emotions."

Reasons Not to Mediate

A study by the Equal Employment Opportunity Commission (“EEOC”) lists common reasons why a lawyer's client may decide not to mediate a dispute. Although the EEOC focuses on employment mediation, the reasons are broadly applicable.  Among the reasons,  "the misunderstanding that mediation requires resolution only in the form of a monetary settlement."  Hat tip to Cullen and Dykman

negotiating via email

Interesting new paper by Noam Ebner (of the Werner Institute at Creighton University) about this important topic: negotiating via email.  It aims to bring the discussion of email negotiation into the age of mobile communication.

Good Books for ADR

Books recommended by Prof. Richard Birke.

" if you want to know how to negotiate better, you need to understand how to make better decisions and what’s going on for the decision-makers across the table."

The full list is here.   I particularly value these two:

Robert Axelrod – The Evolution of Cooperation (how cooperation can emerge in competitive environments)

Cass Sunstein and Richard Thaler – Nudge (how to get people to do things that are good for them)

Plea Bargaining Incentives

Settlement negotiation in criminal cases is typically called "plea bargaining."  In plea bargaining, as in civil-case settlement negotiation, incentives matter -- not just the parties' incentives but also their lawyers' incentives.  This from Cynthia Alkon is a good example.

Representing Clients in Mediation

These slides offer an introduction to mediation and basics for lawyers representing clients in mediation.

ADR Prof Blog

The ADR Prof Blog has good posts by Professors

Andrea Schneider

Michael Moffitt

Sarah Cole

Art Hinshaw

Jill Gross

Cynthia Alkon

Paul Kirgis

Jennifer Reynolds

Principles of Alternative Dispute Resolution

Principles of Alternative Dispute Resolution on Google Books and Amazon

Arbitration articles

Arbitration articles here
http://stephenwarekukansasarbitration.blogspot.com/

ADR in cyberspace

Ware, Stephen J. and Rudolph Cole, Sarah, ADR in Cyberspace. Ohio State Journal on Dispute Resolution, Vol. 15, No. 3, 2000. Available at SSRN: http://ssrn.com/abstract=993448  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=993448