BATNA Difference?: Negotiating in Good Faith in Civil Law Countries

Negotiating in Good Faith: Walking Away to BATNA Under the Civil Law,

by Professor Gregory Marsden:

This paper examines the concept of BATNA and whether we may validly advise negotiators outside the common law world to cease negotiating if the expected outcome does not exceed their previously-determined BATNA. Such advice is commonplace in negotiation methods informed by the common law tradition. However, we submit that the same advice may lead negotiators astray under the civil law, which provides that a party may be held liable for breaking off a negotiation without just cause.

To resolve this issue, we propose that international negotiators focus on BATNA as just one component of the broader concept of Reserve Value, which must also take into account potential pre-contractual liability.

Negotiating with Difficult People

Negotiating with Difficult People, 

a new article by John Harington Wade, Law Professor Emeritus, Bond University.

He defines difficult people as behaving in ways detrimental to his/her own best interests and to the interests of his/her community, for example:

- sends long insulting emails

- uses unnecessarily inflammatory language 

- arrives at meetings unprepared

- tries to ambush people with new information

- is totally focused on self-interest (“I need…..”), and is apparently

unaware of needs or goals of others

- lies and exaggerates

- cannot identify what is important or a priority in their lives

- spends more time and money on the dispute than it is apparently worth

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Confidentiality in Mediation

"Protecting Confidential Information in Commercial Mediations" 

is a new article by Paul Lurie and Sharon Press.

Despite the Uniform Mediation Act, "there is no uniformity in the United States as to how or when information disclosed in mediation may be used or protected from use in subsequent legal proceedings. This confusion about the protection of information may discourage parties in commercial disputes from using mediation. For those parties who decide to enter mediation, the Model Standards of Conduct for Mediators make the mediator responsible for promoting understanding “of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.”"

This article includes a suggested mediation confidentiality clause that can be used in agreements to mediate commercial disputes.

Advice for Women Negotiating for Higher Pay

Today's New York Times has an article entitled, "Moving Past Gender Barriers to Negotiate a Raise".   

A few nuggets of interest to negotiators:

"Women tend to negotiate less for themselves than men, when there aren’t clear standards on what they should be asking for, studies found. In fact, women worked longer and made fewer errors but paid themselves less than men did for similar tasks, according to another study. But that effect went away when women were given data on what others paid themselves."

"When negotiating for higher pay, research has found that it is not enough for women to act in a way that conforms to stereotypes. Acting feminine enough — that is, showing they care about maintaining good relationships as well as the communal good over themselves, for instance — helps women in the likability department. And that’s important.  But that doesn’t necessarily make the person in the position of power any more likely to grant a woman’s request. Women also need to legitimize their requests, or find ways to make them seem more appropriate"

Grow the Pie by Timing Payments

Good negotiators find ways to increase value by making deals that give each side its high priorities while making concessions on that party's low priorities. 

I like to call this "positive-sum" negotiating, while some others like to call it "integrative bargaining" or "problem-solving negotiation." 

Whatever one calls it, a common way to do it is by considering different ways to time payments of money.   Karass gives short examples.

Negotiation Theory and Empirical Data

New article by Missouri Law Professor John Lande on Negotiation Theory, with empirical data

A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation

Lande argues that "The prevailing negotiation theory tries to fit lots of square pegs into just two round holes - adversarial or cooperative bargaining."

Caution on Regulation of Mediation

Where Mediation is Concerned, Sometimes 'There Ought Not to Be a Law'! is the title of a short and wise caution by several leading mediation scholars: Sarah Rudolph Cole, Craig McEwen, Nancy Rogers, James Coben, and Peter Thompson.