Law Commons^™

Should They Listen To Us? Seeking A Negotiation / Conflict Resolution Contribution To Practice In Intractable Conflicts, Chris Honeyman, Sanda Kaufman, Andrea Kupfer Schneider

Journal of Dispute Resolution

Conflict resolution (CR) has had its successes, particularly in what has become common negotiation and mediation practice in divorce, civil litigation, and small to medium scale public policy disputes. Yet despite these practical inroads and increasingly successful dissemination of the ideas of our field, CR practitioners in politics and policy (and other fields) are still conspicuous by their absence in the largest, most consequential conflicts. Negotiation remains the vehicle for addressing international conflicts nonviolently. However, as of 2007 when we first questioned the relative lack of practical impact (at the highest levels) of negotiation scholarship, the international relations practitioners did …

The Definition Of Negotiation: A Play In Three Acts, Noam Ebner, John Lande, David Matz, Andrea Kupfer Schneider

Journal of Dispute Resolution

This Article is based on a conversation between Andrea, Noam, and David as they drove to the airport following the Tower of Babel symposium. Then, John metaphorically joined the ride and participated in the quest to find a good definition of negotiation.

Using The Terms Integrative And Distributive Bargaining In The Classroom: Time For Change?, Rishi Batra

Journal of Dispute Resolution

The terms “integrative bargaining” and “distributive bargaining” have been with us in the dispute resolution literature since at least the 1960's, when A Behavioral Theory of Labor Negotiations was first published in 1965 by Richard Walton and Robert McKersie. While the terms were popularized by these two authors, the authors themselves acknowledged the long line of predecessors, including Mary Parker Follett, who led them to promote these categories. Since that time, “integrative” and “distributive” have been with us, and have captured the imagination of scholars, trainers, and practitioners, while remaining popular in the dispute resolution literature today. Despite the proliferation …

How To Learn About Negotiation From Full Length Descriptions Of Real Events, Adrian Borbély, David Matz

Journal of Dispute Resolution

This Article discusses book-length accounts of real negotiations and their value for understanding the process of negotiation. We focus much attention on an excellent example, Thirteen Days in September by Lawrence Wright, which is a rich account of the negotiation in 1978 involving US President Jimmy Carter, Egyptian President Anwar Sadat, and Israeli Prime Minister Menachem Begin. We are interested in the usefulness and challenges of using such detailed accounts of historical negotiations to build theory. We find it significant that book length detailed accounts of single negotiations have not been on any of the many negotiation syllabi we had …

Novel Negotiation, Rebecca Hollander-Blumoff

Journal of Dispute Resolution

Over the past half-century, the study of negotiation has blossomed into a robust discipline – negotiation and conflict resolution are recognized fields, with dedicated courses of study, experts, and institutional capital. The field has been inherently interdisciplinary from the outset, combining elements from fields including, but not limited to, economics, political science, law, psychology, anthropology, and sociology. At the University of Missouri Law School’s Tower of Babel symposium in the fall of 2016, the program focused on whether it is possible or even desirable to unify a discipline that is ineluctably diverse. Furthermore, if unification is a desired goal, how …

Negotiation Is Changing, Noam Ebner

Journal of Dispute Resolution

Many changes – those we notice, and those that escape our attention until we are quite a ways down a new path – are only the tip of the iceberg of the change that individuals and society are experiencing as a result of the technological developments of the past couple of decades. Introducing technology into every area of our lives, every aspect of our work, and every pocket of our clothes has far-reaching effects, which researchers are only just now uncovering.

We are not only changing our behaviors; we are being changed by our new behaviors: We now conduct our …

A “Grand” Unified Negotiation Theory . . . In Context, Adrian Borbély, Noam Ebner, Chris Honeyman, Sanda Kaufman, Andrea Kupfer Schneider

Journal of Dispute Resolution

Negotiation research began in the 20th century and is continuing apace. It is pursued from the perspectives of several disciplines including psychology, organizational behavior, labor relations, decision sciences, game theory, communications, legal studies, international relations, public policy, and others. Added to these are best practices from several fields engaged in intervention in conflicts. By now we have accumulated a considerable volume of wisdom regarding what drives people and entities to negotiate, how they behave when doing so, how they should handle negotiations to obtain specific results, and how to help disputants resolve to come to joint, mutually satisfactory decisions. However, …

The Negotiation Within: The Impact Of Internal Conflict Over Identity And Role On Across-The-Table Negotiations, Robert C. Bordone, Tobias C. Berkman, Sara E. Del Nido

Journal of Dispute Resolution

This article argues that negotiators' experiences of internal conflict over their identity and role - what we term "the negotiation within" - has a significant impact on across-the-table negotiations in the legal profession and in business. This impact has been mostly overlooked by the literature on negotiation, which focuses on strategic, structural, and psychological barriers to negotiated agreements that are divorced from the real, internal experiences of most negotiators. The article analyzes the impact and suggests a typology for naming and understanding internal conflict. It concludes with a three-stage prescription on how to manage such conflicts described as Mirror work, …

Patent Prosecution As Dispute Resolution: A Negotiation Between Applicant And Examiner, Jaron Brunner

Journal of Dispute Resolution

The phrase "negotiation is ubiquitous" has been used countless times by negotiation scholars, corporate executives, and cognitive psychologists.' At its most basic level, negotiation is simply a communication between parties when one party wants something from the other. In the legal setting, parties use negotiation to attempt to divide up limited resources, reach a settlement and attempt to execute a contract. Even procedures as mundane as filing for a patent in the United States can, and have been, described as a complex negotiation.4 However, while many practitioners describe responding to the United States Patent and Trademark Office (USPTO) as a …

Missouri Eminent Domain Reforms Of 2006 Good Faith Negotiation Requirement: Cities Can Use Illegitimate Appraisals Under Kansas City V. Ku, The, Jeremy T. Cranford

Missouri Law Review

This Article argues that the holding of the Western District contravenes decades of Missouri statutory construction law, undermines significant public policy considerations, and indirectly implicates the Missouri constitutional guarantee of "just compensation" for takings by furthering a system of undercompensation. This Article speculates as to the potential policy reasons for such a holding and, finding only the considerations of judicial economy and condemnation proceeding efficiency (time and expense to the condemnor, the burden of which passes to taxpayers), this Article argues that such considerations must yield to the property interests clearly protected by the language of the Missouri legislature

I Want The Opposite Of What You Want: Reducing Fixed-Pie Perceptions In Online Negotiations, Laura Klaming, Jelle Van Veenen, Ronald Leenes

Journal of Dispute Resolution

Negotiators typically believe their opponents' interests are diametrically opposed to their own. The existence of these fixed-pie perceptions has been identified as a major cause of ineffective conflict resolution and seem to be relatively resistant to change. In contrast to what negotiators typically believe, most conflict situations contain potential for solutions that benefit both parties instead of favoring one party at the expense of the other. Integrative agreements can be reached if opposing negotiators realize that they might have different priorities.

Problem-Solving Negotiation: Northern Ireland's Experience With The Women's Coalition, Jacqueline Nolan-Haley, Bronagh Hinds

Journal of Dispute Resolution

Women's peacemaking skills have long empowered them as voices for reconciliation in divided societies 8 and therefore, the role of women in preventive diplomacy, conflict resolution, and post conflict reconstruction is widely advanced today. Although historically women are credited with being actively involved in peacemaking efforts at the grassroots level during periods of conflict,' ° they are not generally considered to play a significant role in formal peace negotiations.' Northern Ireland proved to be an exception.'

Finding Out If It Is True: Comparing Mediation And Negotiation Through Research, Craig A. Mcewen, Roselle L. Wissler

Journal of Dispute Resolution

In this article, we first use existing research evidence to contextualize more clearly the place of civil case mediation in the litigation process. When we understand civil mediation as part of adversarial litigation - rather than as distinct from it - we see the importance of comparing mediation and unassisted negotiation. Next, we discuss research and commentary on the barriers to negotiation and the ways in which mediation might help overcome them. This work provides a more pragmatic and empirically grounded perspective on the potential value of mediation than does "mediation ideology" and suggests a wide range of "hypotheses" to …

Lawyer-Negotiator As Mood Scientist: What We Know And Don't Know About How Mood Relates To Successful Negotiation, The, Clark Freshman, Adele Hayes, Greg Feldman

Journal of Dispute Resolution

This article explores two related questions: First, does mood7 shape how well lawyers succeed at negotiation?" Second, can lawyers succeed better at negotiation by understanding and managing the role of mood? We begin by exploring what scientific evidence we currently have about how mild changes in mood are associated with significant differences in success at negotiation. Ultimately, we argue that existing scientific evidence shows mood plays a far more complicated role than negotiators and negotiation scholars usually imagine, but that further research needs to address more carefully exactly how mood works and how it affects lawyers and legal negotiation. We …

Utilitarian Analysis Of The Objectives Of Criminal Plea Negotiation And Negotiation Strategy Choice, Joseph W. Vanover

Journal of Dispute Resolution

This article examines the repercussions of choosing a negotiating style for the present criminal case on the actions of opposing counsel in future cases. It scrutinizes the criminal plea negotiating process from the perspective of both a prosecuting attorney and a defense attorney. It analyzes this process using two philosophical theories: act utilitarianism and rule utilitarianism.

Primer On Competitive Bargaining, A, Gary Goodpaster

Journal of Dispute Resolution

The aim of this Article is to explore the competitive bargaining strategy in depth. Because competitive negotiation behavior is common, and sometimes advisable, one must understand it well to master negotiation practice. Knowing how competitors operate enables a negotiator to recognize competitive bargaining when it occurs and to deal with it affirmatively by transforming a competitive negotiation into a cooperative one or defensively by countering competitive moves. Furthermore, even parties who negotiate cooperatively sometimes compete. For example, negotiators may create a win-win situation by cooperating to "increase the size of the pie" to be divided between them. Nonetheless, they still …

Negotiation As A Healing Process, Gerald R. Williams

Journal of Dispute Resolution

Beginning in the late 1970's and continuing even today, there has been intense criticism in the media and elsewhere that Americans are too litigious, that people and institutions are too frequently going to court against one another. While the criticism may be partly merited, when considered from a more personal perspective, what seems remarkable is not how much litigation there is, but how little. For example, most members of society suffer harms, inconvenienses, and injustices that infringe on their legal rights and could be, if they chose, grounds for legal action. Most individuals recognize, however, that if they made a …

Negotiating In Good Faith: Management's Obligation To Maintain The Status Quo During Collective Bargaining Under The Railway Labor Act - International Ass'n Of Machinists & Aerospace Workers V. Transportes Aereos Mercantiles Pan Americandos, S.A., Jay M. Dade

Journal of Dispute Resolution

When an employer and employee-representative union engage in collective bargaining negotiations, their negotiating activities are covered under the auspices of the Railway Labor Act.2 The Act, particularly applicable today in the tumultuous airline industry, established a rather elaborate mechanism for negotiation, mediation, voluntary arbitration, and conciliation to avoid interruptions to interstate commerce, to protect employees' freedom of association with respect to labor unions, and to provide prompt and orderly dispute settlements. 3 Indispensable to this scheme, Section 152, First of the Act imposes a statutory obligation upon the parties to such negotiations to bargain in good faith.4 In International Ass …

Book Review

Journal of Dispute Resolution

Getting Past No is an important companion to a previous book co-authored by William Ury. In 1981, Ury collaborated with Roger Fisher on a book entitled Getting to Yes, 3 which has sold more than two million copies and has become one of the most influential works on the subject of negotiation. Getting to Yes is a lucid, step-by-step guide for negotiating mutually satisfactory agreements. The authors labeled their approach "principled negotiation" and boiled it down to the following points: separate the people from the problem; focus on interests, not positions; generate a variety of possibilities before deciding what to …

Chipping Away At Lawyer Veracity: The Aba's Turn Toward Situation Ethics In Negotiations, Ruth Fleet Thurman

Journal of Dispute Resolution

This Article questions the wisdom of the Model Rule's exceptions to honest dealings in negotiations on several grounds: (1) Proponents of the exceptions have not offered empirical evidence or professional justification for this approach; 16 (2) The approach will further tarnish the profession's image; (3) The approach will create a slippery slope that leads to unintended ethical violations; and (4) The approach will erode the high degree of trust, veracity and integrity required of lawyers as "officer[s] of the legal system."1 7 For these reasons, the Model Rule's exceptions to honesty in negotiations should be abolished by the ABA and …

Negotiated Investment Strategy, Carl M. Moore

Journal of Dispute Resolution

The Negotiated Investment Strategy (NIS) was created by the urban affairs program at the Kettering Foundation as a vehicle for cities to shape their own future. The creators of the NIS, in the late 1970's, observed that while most major cities needed help, such help was hard to come by. Three reasons account for this. First, the assistance that was available to cities, particularly from the federal government, was often in the form of categorical grants, and it was difficult to tailor the assistance to the particular needs of the city. Second, there was a great deal of duplication of …

Clinical Negotiating Achievement As A Function Of Traditional Law School Success And As A Predictor Of Future Negotiating Performance, Charles B. Carver

Journal of Dispute Resolution

This article will explore the degree to which these two basic hypotheses have been substantiated. Statistical comparisons will be made between negotiation course performance and overall law school success. Comparisons of bargained results obtained in a Trial Advocacy class are made between students who had previously taken my Lawyer as Negotiator course and students who had not received such clinical training.

Book Reviews , Robert Coulson

Journal of Dispute Resolution

This is an important book for anyone who needs to understand how changes can be orchestrated in our increasingly complex society and how major economic disagreements can best be resolved. Too many books and papers on dispute resolution are written by academics and others who have little practical experience with the process. Perhaps that is why negotiation is often described in terms of two people bargaining across a table, sometimes with the help of a single, neutral mediator. In real life, each "party" consists of numerous contesting individuals expressing conflicting demands, some resisting any tendency to compromise, others willing to …

Lawyer's Skills In Negotiations: Justice In Unseen Hands, Jeffrey H. Hartje

Journal of Dispute Resolution

The purpose of this article is to identify and explore the processes and dynamics of lawyer negotiation at the skill level. Part I, Operational Skills in Preparation for Negotiation, examines processes and subprocesses of negotiation to develop a background for understanding the potential areas of lawyer skill involved in the operation of negotiation in Section A. Section B explores the preparation skills involved including the analysis and development of a negotiation theory of the case which requires an understanding of the substance of the negotiation, norms, precedent and power combined with fact management and effective characterization of the facts of …