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Alternative Dispute Resolution
SUNY Buffalo Law School
Civiletto-Morris, Christen

Course Requirements

Final Exam – practical questions about a real life scenario
Participation – large part of course
Writing Assignment – practical memorandum

Getting to Yes:

The Problem
Don’t Bargain Over Positions
1. Arguing over positions produces unwise agreements
2. Arguing over positions is inefficient
3. Arguing over positions endangers an ongoing relationship
4. When there are many parties, positional bargaining is even worse
5. Being nice is no answer
6. There is an alternative

The Method

Separate the Problem from the Problem

a. Negotiators are people first
b. Every negotiator has two kinds of interests: in the substance and in the relationship
i. The relationship tends to become entangles with the problem
ii. Positional bargaining puts relationship and substance in conflict
c. Separate the relationship from the substance; deal directly with the people problem
d. Perception
i. First recognize and understand emotions, theirs and yours
ii. Don’t deduce their intentions from your fears
iii. Don’t blame them for your problem
iv. Discuss each other’s perceptions
v. Look for opportunities to act inconsistently with their perceptions
vi. Give them a stake in the outcome by making sure they participate in the process
vii. Face-saving: make your proposals consistent with their values
e. Emotion
i. First recognize and understand emotions, theirs and yours
ii. Make emotions explicit and acknowledge them as legitimate
iii. Allow the other side to let off steam
iv. Don’t react to emotional outbursts
v. Use symbolic outbursts
f. Communication
i. Listen actively and acknowledge what is being said
ii. Speak to be understood
iii. Speak about yourself, not about them
iv. Speak for purpose
g. Prevention works best:
i. Build a working relationship
ii. Face the problem, not the people

Focus on Interests, No Positions

h. For a wise solution reconcile interests, not positions
i. Interests define the problem
ii. Behind opposed positions lie shared and compatible interests, as well as conflicting ones
i. How do you identify interests?
i. Ask “why”
ii. Ask “why not” think about their choice
iii. Realize that each side has multiple interests
iv. The most powerful interests are basic human needs
v. Make a list
j. Talking about interests
i. Make your interests come alive
ii. Acknowledge their interests as part of the problem
iii. Put the problem before the answer
iv. Look forward, not back
v. Be concrete, no flexible
vi. Be hard on the problem, soft on the people

Invent Options for Mutual Gain

vii. Diagnosis
viii. Premature Judgment
ix. Searching for the single answer
x. The assumption of a fixed pie
xi. Thinking that “solving their problem is their problem”
xii. Prescription
a. Separate inventing from deciding
i. Before brainstorming
ii. During brainstorming
iii. After brainstorming
iv. Consider brainstorming with the other side
b. Broaden your options
i. Multiply options by shuttling between the specific and the general: The Circle Chart
ii. Look through the eyes of different experts
iii. Invent agreements of different strengths
iv. Change the scope of a proposed agreement
c. Look for mutual gain
i. Identify shared interests
ii. Dovetail differing interests
i. Any difference in interests
ii. Different beliefs
iii. Different values placed on time
iv. Different forecasts
v. Differences in aversion to risk
iii. Ask for their preferences
d. Make their decision easy
i. Whose shoes
ii. What decisions
iii. Making threats is not enough

Insist on Using Objective Criteria

k. Deciding on the basis of will is costly
l. The case for using objective criteria
i. Principled negotiation produces wise agreements amicably and efficiently
m. Developing objective criteria
i. Fair standards
ii. Fair procedures
n. Negotiating with objective criteria
i. Frame each issue as a joint search for objective criteria
1. Ask “whats your theory”
2. Agree first on principles
ii. Reason and be open to reason
iii. Never yield to pressure
o. It’s company policy.

Alternative Dispute Resolution: alternatives to the conventional trial process

Traditional Private Alternatives [private parties create their own legal rules or norms and support laws that facilitate private ordering]

Negotiation – process of using bargaining techniques to resolve a dispute
Mediation – adds a third party, the mediator, to the basic negotiation model; also known as assisted negotiation (mediator does not make any decisions)
Arbitration – disputing parties go before their chosen private judge, the arbitrator, who is a neutral, unbiased expert in the subject matter of the dispute and who decides the case in an adjudicatory fashion (decision binding absent showing of a bias or severe unfairness)
Mini-trial – private presentation of evidence to a neutral expert and, if necessary, rule or aid the parties in their settlement discussions (non-binding, settlement based)

Court-Annexed Alternatives: a competitive reaction by courts to citizen demands; also a method to manage caseloads and promote earlier settlements]

Court-Annexed Mediation – trial or appellate lever; volunteer or professional mediators
Early Neutral Evaluation – program assigns a third-party neutral trial attorney to make a pre-trial prediction on the likely outcome that would result from a full trial (helps objectively evaluate a case/settlement)
Judicial Mediation – judges act as mediators in an effort to settle cases (either assigned or other judge)
Summary Jury Trial – a non-binding sneak preview of a jury verdict to promote settlement; each party presents evidence before a jury in a brief amount of time in the form of a summation
Court-Annexed Arbitration (CAA) – jurisdictionally applies to all civil cases (sometimes a statutory monetary limit is imposed); ruling is non-binding and party can opt for a trial de novo (appeal); if appeal is unsuccessful, penalty is imposed on moving party
Rent-a-judge – parties can hire their own judge who renders a decision (usually a retired judge)

Administrative Agency-Annexed Alternatives

Regulatory Negotiation – joint drafting of an agency regulation by interested parties (regulated group/industry, public interest rep, agency staff); avoids delay/expense of typical notice and comment rulemaking process
Agency-Annexed Mediation – party control/early settlement
Agency-Annexed Arbitration
Agency Convening – agency supplies a neutral to initiate the dispute resolution process by consulting with disputants and exploring their dispute resolution desires

Less Expensive
Fact-Based (No legal norms)
Party Control

Legal Norms
Less Party Control



Court Annexed Mediation

Early Neutral Evaluation


to foster collaboration and encourages innovative thinking in opponents
iv. Mediator: tries to establish rapport, listens carefully to others, favors consensus and works to generate mutual gains

Collaborative Law: used mostly by Canadian lawyers, some American lawyers

i. Enter into pre-dispute resolution agreements under which the clients and the legal representatives agree to negotiate from the outset using the problem-solving, interest-based style
ii. Promise to be completely open with each other, minimize the need for formal discovery procedures and to work to achieve mutually beneficial accords
iii. Includes a disqualification clause precluding them from representing their respective clients if the case is not resolved and either party elects to proceed to trial
iv. Avoids competitive, value-claiming tactics that might disrupt interest-based bargaining

Types of Negotiation

More complicated an interaction, the more protracted the negotiation process is likely to be – must obtain an understanding of the overall circumstances before mutually acceptable results can be achieved
Relevant Factors:

i. Flexibility in structure of negotiations between legal formality and legal irrelevancies
ii. Alternative arrangements in the case of non-agreement or lack of external options
iii. One-time interactions between clients and/or legal representatives or future dealings entailing continuing relationships
iv. Client control of transaction or additional constituencies that must ultimately approve any proposed agreement

Verbal Communication

Most people are risk adverse when choosing between a sure gain and an uncertain alternative that may result in a greater gain or nothing
However, when one option entails a definite loss and the alternative may enable them to avoid any loss, most persons become risk takers
Regret Aversion: people don’t like to make decisions that may be shown by subsequent developments to have been incorrect

Nonverbal Communication

Facial expressions
Double messages (contradictory expressions to words)
Body movements
Changes in the usual behavior of others and predictable patterns of conduct
Deceptive Conduct

Impact of Cultural Differences

Different meanings to identical speech and behavior
Stereotypical baggage regarding different cultures
Must establish trusting and cooperative relationship before negotiations begin


Focus on a broad orientation by looking at the interests that lie beneath the positions that the participants assert and help participants understand and fulfill those interests

Mediator’s Role:

evaluate (provide direction as to appropriate grounds for settlement) and/or

facilitate (enhance and clarify communications between the parties to