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<xTITLE>Agents</xTITLE>

Agents

by Colin Rule
August 2018

From the eDeliberation blog by Colin Rule.

Colin Rule

A couple years ago, my son’s cell phone stopped turning on.  Of course, this immediately became a major crisis in our family (I was repeatedly and emphatically informed that long snapchat response chains were at risk), so as the family nerd, I was put on the case.  Some quick diagnosis made clear that it wasn’t a fixable issue on my end (it may or may not have gotten wet in the rain once or twice, the facts were fuzzy), so I had to reach out to the manufacturer to explore what solutions might be in the realm of the possible.

Of course, the phone had gone out of warranty just a few weeks before it died.  I dialed the customer service line to plead my case.  After making my way through a maze of voice prompts, I reached an agent who, after hearing my sob story (we’re so close to the expiration date!) was kind enough to green light my request. We began the surprisingly in-depth process of getting a replacement.  I had to fill out forms detailing the issues experienced, send in purchase receipts, as well as take photos of the phone from all sides.  It took a couple calls, but I had the direct number for the agent in question, and he was very helpful in getting me through the steps.  Finally, he gave me word that everything was in order, and a new phone should be sent out in a week or two.

I took the victory lap with my wife.  I took the victory lap with my son.  I recall them toasting me at dinner.  I beamed with nerd pride.

However, a week passed and no phone came in the mail.  Then another week passed.  I dreaded re-opening the negotiation, but it was unvoidable.  I called the direct number for the friendly agent I had worked with, and this time it went to a general intake queue — not a good sign.  Eventually I reached a new agent and made my case.  She said she couldn’t find any record of my submission.  My heart fell.  I asked for a supervisor.  When she came on, I walked through my story from the beginning.  I got her to admit that there was a record of my submission — I hadn’t dreamed the prior conversations and the photos of the phone I had sent in — but, she said, the original agent hadn’t had the authority to green light my request for a new phone.  So sadly, I was out of luck.

The crow I had to eat with my family was bad enough, but it was compounded by the frustration around the time I had wasted.  I thought I’d achieved a good resolution, but it turns out I was working with the wrong negotiating partner, because they didn’t have the authority to deliver.

This is the challenge of negotiating with agents.  As two of the founders of the Program on Negotiation at Harvard Law School, Frank Sander and Jeffery Rubin, put it in 1988: “The most obvious effect of using agents… is a complication of the transaction.  If we begin with a straightforward negotiation between two individuals, then the addition of two agents transforms the simple one-on-one deal into a complex matrix involving at least four primary negotiations, as well as two subsidiary ones… [this] structural complexity has implications — both positive and negative — for representative negotiation in general.”

In dispute resolution, we usually recommend that the participants in a resolution process have direct authority to make the final decision.  If the participants don’t have that authority, then you risk a situation like mine: agreement achieved, but not worth the paper it’s written on, because the real decision maker wasn’t bought in.

The use of agents is often tactical.  Sometimes a low power representative is sent to the negotiating table just so the high power player behind the scenes can gather information without making any direct commitments.  Or sometimes an agent is sent to a negotiation entirely to stonewall or obfuscate, assisted in that effort by their remove from the details of the case (as in, “I don’t know anything about this matter — all I know is that I don’t have the authority to agree to any of your demands.”)

The most common kind of negotiation agent is a lawyer.  Sometimes lawyers can help with resolutions, because their expertise and emotional remove can focus the discussion squarely on the issues to be addressed.  But lawyers can also complicate negotiations, because a) they have their own interests (e.g. getting the win, billable hours) and b) they may have a deep toolbox of techniques for confusing, extending, and obfuscating negotiations that they can call upon if they see such strategies as being in their client’s interest.

Representatives may sometimes be more inflexible than the stakeholders they represent.  Imagine, for example, a representative of a labor group who refuses to budge an inch in a salary negotiation because he’s worried that when he brings the deal back to his membership that they’ll accuse him of selling them out.  Or the opposite may be true: a representative is easy to work with and overeager to reach a mutually agreed upon solution, but they don’t have the credibility required to sell it to the group they represent, so it’s likely to fall apart later (such as Arafat’s inability to get agreement from the various Palestinian factions in his negotiations with Israel).

Agents can also have their own agendas as well.  It’s important to pick your representatives carefully, because they may look after their own interests instead of yours once they are shrouded in the privacy of the negotiation process.

Which brings us to the negotiations in Helsinki.  We Americans picked our agent through the process outlined in the Constitution, and now that agent is representing us on the world stage — but questions are being raised about whose interests he is really representing.  Now these negotiations have started to happen in private, so we don’t know what commitments are being made on our behalf.

As a result, this is a delicate time.  We need more information about what has happened so far, as well as what plans are being made for the future.  That will require some patience as the investigators carefully do their thing.  But if our chosen representative loses the confidence of the people he represents, then he won’t be our agent for very long — and the commitments he’s making may not be worth the paper they’re written on either.

Biography


Colin Rule is Vice President for Online Dispute Resolution at Tyler Technologies. Tyler acquired Modria.com, an ODR provider Colin co-founded, in 2017. From 2003 to 2011 Colin was Director of Online Dispute Resolution for eBay and PayPal. He has worked in the dispute resolution field for more than 25 years as a mediator, trainer, and consultant. He is currently Co-Chair of the Advisory Board of the National Center for Technology and Dispute Resolution at UMass-Amherst and a Non-Resident Fellow at the Gould Center for Conflict Resolution at Stanford Law School.

Colin co-founded Online Resolution, one of the first online dispute resolution (ODR) providers, in 1999 and served as its CEO (2000) and President. In 2002 Colin co-founded the Online Public Disputes Project (now eDeliberation.com) which applies ODR to multiparty, public disputes. Previously, Colin was General Manager of Mediate.com, the largest online resource for the dispute resolution field. Colin also worked for several years with the National Institute for Dispute Resolution (now ACR) in Washington, D.C. and the Consensus Building Institute in Cambridge, MA.

Colin has presented and trained throughout Europe and North America for organizations including the Federal Mediation and Conciliation Service, the Department of State, the International Chamber of Commerce, and the CPR Institute for Dispute Resolution. He has also lectured and taught at UMass-Amherst, Harvard, Yale, Stanford, Pepperdine, Southern Methodist University, and Santa Clara University.

Colin is the author of Online Dispute Resolution for Business, published by Jossey-Bass in September 2002, and The New Handshake: Online Dispute Resolution and the Future of Consumer Protection, published by the ABA in 2017. He has contributed more than 50 articles to prestigious ADR publications such as Consensus, The Fourth R, ACResolution Magazine, and Peace Review. He serves on the boards of the Consensus Building Institute and the PeaceTech Lab at the United States Institute of Peace. He holds a Master’s degree from Harvard University’s Kennedy School of Government in conflict resolution and technology, a graduate certificate in dispute resolution from UMass-Boston, a B.A. from Haverford College, and he served as a Peace Corps volunteer in Eritrea from 1995-1997.



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