This post channels 60% of Jack Nicholson but without the chicken salad sandwich.
It describes three short pieces that you might want to use in courses or continuing education programs.
Overcoming Roadblocks to Settlement
The first is an article entitled Overcoming Roadblocks to Reaching Settlement in Family Law Cases published in Family Advocate, the magazine of the ABA Family Law Section. Here’s the abstract:
“In ‘litigation as usual,’ settlement often comes only after adversarial posturing, the original conflict escalates, the relationships deteriorate, the process takes too long and costs too much, and nobody is really happy with the resolution. This article describes common roadblocks to negotiation and ways to overcome them to reach good settlements. Although some dynamics described in this article are specific to family law cases, most apply in virtually any type of litigation.”
I want to highlight the last point because there is a common misconception that family cases are – gasp – “emotional” and other cases aren’t. Ain’t necessarily so. When I practiced divorce mediation, some clients treated their (ex-)spouses with great care and some came “pre-shrunk.” Before they arrived in my office, they had gone to counseling, worked through their relationship issues, and were ready to resolve legal and financial issues with little or no drama. On the other hand, as I always say, hell hath no fury like a business partner double-crossed.
Getting the Benefit of Planned Early Dispute Resolution
You probably have heard the saying, “Give a man a fish, and you feed him for a day. Teach a man to fish, and you feed him for a lifetime.” Using mediation and other dispute resolution processes on an ad hoc basis is like giving a person a fish. It resolves a problem, but it leaves parties at risk of repeating the same problems over and over. Using a PEDR system is like teaching parties to fish because it helps them to deal with an ongoing series of problems.
Addressing this dynamic, I wrote Getting the Benefit of Planned Early Dispute Resolution in Construction Projects for a special issue on mediation in the Construction Law Letter. Here’s that abstract:
“This short article argues that although mediation usually is better for parties than a trial, when mediation occurs late in litigation, parties can suffer many of the same problems as in litigation. Mediation of individual disputes can resolve particular problems, but parties remain at risk of repeating the same problems in the future. Using a ‘planned early dispute resolution’ (PEDR) system can help parties to efficiently and effectively deal with an ongoing series of problems. This article describes how companies can use PEDR to achieve parties’ goals by systematically preventing disputes from mushrooming out of control as well as efficiently managing disputes after they arise. It outlines steps in PEDR procedures, which can be used by virtually any organization and are not limited to construction matters.”
In the my study of actual PEDR systems (with Peter Benner), the companies using PEDR systems were in a wide variety of industries, none of which happened to be construction.
Making Sense of Negotiation Theory
After I interviewed lawyers about actual negotiations and found that the traditional concepts of integrative and distributive negotiation (and multiple variations) often didn’t fit the reality of negotiation, I wondered if other parts of accepted negotiation theory also were problematic.
Trying to get a handle on this was a daunting task. Scholarship on negotiation sprawls across numerous disciplines and deals with a wide range of issues. The result of my survey of general negotiation texts was a chapter in Chris Honeyman & Andrea Schneider’s Negotiator’s Desk Reference, Taming the Jungle of Negotiation Theories. Here’s the abstract:
“To identify the range of issues covered in negotiation theory, this chapter surveys negotiation texts from various disciplines including law, business, economics, labor, international relations, and social sciences. This chapter demonstrates that, although there is considerable overlap between the texts, there is little overall coherence and nothing approaching a consensus about the structure and content of negotiation theory or even a definition of negotiation. It provides a general framework for negotiation theory by synthesizing the content of the texts.”
I think that this chapter is useful for two reasons. First, the framework encompasses most of the major issues in negotiation theory, enabling readers to quickly organize and understand these issues. There is no perfect way to do this, but I think this is pretty good.
Second, it is like Cliff Notes for negotiation theory. Not great literature, but a handy summary.
Here’s the outline of the framework:
- Definition of Negotiation
- Disputes, Transactions, and Decision Making
- Complexity, Uncertainty, and Risk
- Theoretical Perspectives
Negotiation Structure and Process
- Motivations, Goals, and Interests
- Negotiation Models
- Alternatives to Negotiated Agreement and Bargaining Zone
- Criteria of Success
- Stages of Negotiation
- Negotiation Strategy and Planning
- Information Bargaining
- Escalation, Impasse, and Failure to Agree
- Overcoming Barriers to Agreement
- Legal and Ethical Constraints
- Individual Qualities and Skills
- Perception, Cognition, and Emotion
- In General
- Agents, Teams, and Leadership
- Multiple Parties and Coalitions
- Negotiation Audiences
- Communication Modes
- Communication Units and Sequences
- Fairness and Justice
- Power and Influence