NegotiationS
Relyea
Spring 2017
ALTERNATIVE DISPUTE RESOLUTION
ADR: Alternative Dispute Resolution
Defined: Any dispute resolution process other than trial.
Benefits of ADR:
Allows parties to explore monetary and non-monetary terms of agreement.
Encourage parties to consider facts, law, and their underlying personal, relationship, and business interests
Provides parties with the ability to renew their relationships, re-structure business arrangements, and otherwise develop creative solutions that meet the needs of individual parties.
5 ways a party can be damaged by going through tiral
Financially
Emotionally
Damage relationships
Time consuming
ADR is appropriate when:
Any subject matter/amount in controversy
Informal
Private
Confidential
Economical
Accessible
Efficient
Freedom to select neutral third party
Freedom to develop creative, non-traditional terms of agreement
ADR is inappropriate when:
Parties want public airing of dispute
Expense of litigation/trial not an issue
Delay benefits a party
Dispute centers on beliefs/values/morals
NEGOTIATION
Negotiation: Any communication process that changes the terms of relationships between people by consent.
Stages of Negotiation:
Preparation: Investigation, determine objectives, analyze alternatives, choose approach/types/styles of bargaining
Negotiation: claiming and creating value, opening offer, tactics, identifying interests, generating options
Implementation: compliance and implementation issues, enforcement of settlement agreements
Arc of Negotiation
Facts: Early emphasis on factual background
Positions, Rights, Claims: Early emphasis on positions taken by the parties regarding their rights
Interests: A skillful negotiator will listen to the factual perspectives and then actively re-focus attention on the interests of the parties.
Options: After a negotiator has an understanding about the other party’s facts, positions, and interests she is in a position to generate options for agreement.
Three APPROACHES to conflict:
Power: A power approach is used when one party in a negotiation has clearly superior economic, military, or other advantages. The source of power may derive from the relationship of the parties, including boss/employee, parent/child, etc. Typified by a unilateral imposition of terms by one party upon the other
Rights: Evidenced by a party’s focus primarily upon legal rights, customs, or norms, as the basis for their position. Can also be based on company policy, regulations, family rules, etc.
Interests: Multiple focus on facts, law, and the parties’ underlying interests. Interests are a party’s underlying needs and concerns. Distinguished from positions because positions are specific desired outcomes.
Combination: Most negotiation use a combination of the above approaches.
Claiming Value & Creating Value
Claiming value: the process of making demands, asserting claims for compensation, and claiming trade-offs from another party.
Creating value: effective negotiators explore ways to create terms and trade-offs that have value to themselves and to the other party. One method of doing this is by identifying a party’s interests and to develop monetary and non-monetary terms that satisfy those interests.
Opening Offers
Anchors: An offer that sets the parameter for the negotiation because it is perceive
underlying interests of the parties.
Rights-Based: Customary/traditional form of bargaining in which the parties’ primary focus is on right and wrong. Factual and legal analyses are based upon assessment of fault.
Distributive: Focuses on allocation of fixed or limited resources between the parties. Referred to as “dividing the pie.”
Integrative: Expands the resources that are the subject of negotiation by introducing the possibility of trade-offs that are used outside the framework of the initial negotiation.
Interest-Based: Focus on the facts, law, and the underlying interests of the parties to develop terms of settlement that produce mutual gains.
3 step process:
Identify the parties’ interests: ask questions that bring out the underlying interests. Look for and verify clues about parties’ goals in their statements, positions, and offers. Draw from experience and context.
Prioritize the parties’ interests: ask parties which interests are most important. Ask parties which interests are most urgent. Ask parties to rank their interests. Make a written list of a party’s priorities that is visible to the parties.
Develop settlement terms that further the most important interests of the parties: focus the parties on their highest priority interests. Generate ideas from parties about ways to further their top interests. Assist in generating ideas about ways to further the parties’ top interests.
