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.

ADR in Britain

Courts in the UK seem to be facing most of the same ADR issues as courts here in the US.  As Jan O'Neill of Herbert Smith Freehills describes, there are studies and observations and recommendation and maybe some incremental reforms encouraging parties and judges to consider ADR

Settling Litigation

While one often hears lawyers and others say "90% of cases settle," this is not consistent with empirical data by University of Hawaii Law Professor John Barkai and Elizabeth Kent of the Hawaii State Judiciary Center for Alternative Dispute Resolution. Their article says "the commonly reported 90 percent settlement rate for all cases is a myth. The settlement rate for 'all' civil cases is about 50 percent (although almost 90 percent of tort cases settle). Trials are rare; jury trials are very rare." 

How does settlement negotiation happen in practice? "The most common type of negotiations is telephone negotiations, not face-to-face negotiation, which is the primary method of teaching negotiation in law schools. Telephone negotiations were the event with the greatest impact on settlement. Over 40 percent of cases used some form of ADR process."

Writing a Mediation Brief or Position Statement

At mediate.com Dave Ezra provides good advice on writing to persuade mediators and other participants in mediation.  He starts: "In many cases it is the mediation briefs -- the overlooked briefs that are often hastily prepared at the last minute -- that are the most important briefs."

"Remember one thing -- mediators read the concluding sections of mediation briefs.  Some might even read them first, before they look at any other part of the brief."

More on Written Position Statements in Mediation here

ADR Professor Jennifer Gerarda Brown Named Dean of Quinnipiac Law

I recently expressed my hunch that "ADR teachers tend more than most law professors to have the skills and temperaments suited to deaning."  Another example of this is Jennifer Gerarda Brown who is in her first year as dean of the Quinnipiac University School of Law.

She is responsible for some very good ADR scholarship and has terrific people skills.  As the school's announcement says, "For nearly 15 years, Brown has served as the director of the School of Law's Center on Dispute Resolution. U.S. News & World Report repeatedly ranks Quinnipiac in the top 20 law school programs in dispute resolution."

Assessing Students' Performance in Negotiation, Mediation, ADR

"Assessing Our Students, Assessing Ourselves" is a great resource for ADR teachers and also has insights for other teachers and those who train negotiators and mediators.  It is available here chapter by chapter in pdf form.

It's published by the Hamline School of Law Dispute Resolution Institute and contains the following chapters. 

1.  Introduction: Assessment as Mirror, Noam Ebner, James Coben & Christopher Honeyman 

2.  Evaluating Our Evaluation: Rethinking Student Assessment in Negotiation Courses, Noam Ebner, Yael Efron & Kimberlee K. Kovach 
3.  Pop Quiz: Do You Use This Evaluation Method?, Noam Ebner & Yael Efron 
4.  Reflective Journal Assignments in Teaching Negotiation, Bobbi McAdoo  
5  The Black Box of Student Evaluation: Course Participation, Noam Ebner & Yael Efron 
6. Using Recordings, Melissa Manwaring & Kimberlee Kovach
7.  Negotiating the Assessment Criteria, Joel Lee
8.  Interviews as an Assessment Tool, Boyd Fuller
9.  Simulation Design for Learning and Assessment, Noam Ebner & Daniel Druckman
10.  Empowerment and Recognition: Students Grade Each Other's Negotiation Outcomes, James Coben
11.  Making Reputation Salient: Using the Reputation Index with Law Students, Nancy A. Welsh
12.  Assessing the Adventure, Sharon Press, Noam Ebner & Lynn P. Cohen

13.  Evaluating Email Negotiations, Melissa Nelken

14.  Assessing Negotiation Competitions, Nuno Delicado, Horacio Falcão, Ellen Deason, Sharon Press, Shahla Ali, Eric Blanchot & Habib Chamoun-Nicolas

15.  A Competition Without Winners or Losers? The Ontogeny of a New Negotiation Event Format, Horacio Falcão

16.  A Benchmarking System for Assessment: An Experiment Creating More Transparency in Grading, Boyd Fuller & Sohni Kaur

17.  Portfolio Evaluation: Kaleidoscopic Insights Into Learning, Michelle LeBaron

Assessing Ourselves, Noam Ebner, James Coben & Christopher Honeyman

Gender Differences in Dispute Resolution Practice

Gina Brown and Marquette Law Professor Andrea Schneider report survey results: "certain practice areas are far more male and certain others are quite female. Second, it appears to matter how the neutral is selected in mediation. Networking resulted in only 29% women while provider lists resulted in an increased percentage of 47%. Finally, arbitration and mediation are not the same for gender integration. Arbitration seems to hold steady at 20% regardless of selection process and even decreases further in panel arbitrations."

Among their recommendations: "in three arbitrator panels, when considering equally qualified candidates, there should be a presumption that a woman be selected as part of a panel. Furthermore, neutrals need to be aware that personal networks still appear to be the primary source of referrals and that these networks need to be strengthened and broadened to include women.... Courts, provider organizations, agencies, and other organizations that administer and oversee ADR programs should be encouraged to use lists and the lists themselves should be broadened to include more women. ... Additional efforts in certain practice areas (commercial, construction, etc.) are likely warranted with a targeted program to identify and encourage women and minorities to serve as neutrals."

Oregon Law ADR Position

The University of Oregon School of Law seeks a Program Director for its ADR Center.  Position description here.

Online Alternative Dispute Resolution

Negotiation, mediation and even adjudication can occur online.  This Online Dispute Resolution (ODR) is the subject of an article by Indiana University business law professors

Scott Shackelford and Anjanette Raymond: "Building the Virtual Courthouse: Ethical Considerations for Design, Implementation, and Regulation in the World of ODR"

Wisconsin Law Review, 2014

Abstract:     

For some time now, there has been a well-documented movement toward alternative dispute resolution (ADR) and away from traditional litigation through courts in the United States and around the world. The benefits of the ADR movement are manifold, ranging from greater control over the process of dispute resolution to alleviating overburdened courts. But the costs of ADR are also becoming increasingly apparent, including a relative lack of due process protections. A more recent phenomenon is the marriage of technology to ADR, creating the field of online dispute resolution (ODR). Increasingly, both public- and private-sector actors are moving towards ODR to resolve low-value disputes. Some companies, such as Modria, are seeking to increase efficiency still further through automating the dispute resolution process through the use of algorithms, effectively removing humans from the justice delivery system. The limited literature analyzing the ODR movement has so far neglected the ethics of these emerging systems. Where should policymakers, business leaders, and societies draw the line between disputes that may be resolved online, potentially using an automated system, and those requiring in-person hearings? This Article seeks to begin the conversation about these questions by reviewing the current technological state of ODR and its use by companies including eBay, Modria, and Cybersettle, among others, before moving on to consider ethical ODR issues including balancing such values as transparency, efficiency, and conflict dynamics. Finally, suggestions for regulating this burgeoning industry are made drawing from the interdisciplinary literature on polycentric governance.

Ohio State Law Professor Sarah Rudolph Cole and I wrote about ODR here