ADR Fall 2014, Prof. Vance
Keyed to Goldberg
E. Negotiation—Page 2
i. truthfulness in statements Rule 4.1 (p. 6)
ii. confidentiality (p. 6)
iii. Why negotiations fail (p. 7)
F. Mediation—Page 7
i. mediation confidentiality Rule 1.6 (p. 9-11)
G. Arbitration—Page 11
I. OVERVIEW OF ADR
A. Types of Disputing Procedures
1. Negotiation-parties themselves come up with a solution and control the process
-if not, then neutral 3rd party comes in and helps parties to come up with a solution
2. Mediation- parties come up with solution, but if not then mediator makes a recommendation
3. Adjudication-Court Case
-arbitration= private party, neutral
b. Hybrid types
1. Rent-a-judge/private judging-former judge or a lawyer is 3rd party, opportunity for parties to make arguments like in court (ex: Judge Judy)
2. Mini-trial-arguments presented in a court in front of neutral party
3. Ombudsman- investigator and mediator
4. summary jury trial- case presented to a non-binding jury to get an idea of what damages would look like in the case; encourages settlement as a result
B. History
1. ADR created in 1970s as a response of civil rights strife
2. San Francisco Community Board was the first ADR center launched to offer neighborhood mediation, but it did not significantly decrease caseload
3. In 1990s Alternative Dispute Resolution Act (ADRA) mandated that all district courts require the use of ADR in cases
4. Administrative Procedures Act (APA) requires government agencies to use negotiation attempts to settle a case (Ex: HUD conciliations)
C. Goals of ADR
1. Lower court expenses and caseload
2. Reduce parties expenses and time
2. Provide faster settlement of disputes that disrupted parties lives
3. Encourage resolutions that better sit with parties needs
4. Teach the public to solve disputes with other forums besides violence and litigation
5. Increase voluntary compliance with resolutions
6. Improve satisfaction with the justice system
D. Criticisms of ADR
1. some important public policy/precedent-setting cases aren’t handled if they are taken to ADR
2. no regulation of the industry
3. wealthy may abandon the courts since they can afford private settlements
4. what kind of cases get priority ADR
E. Negotiation- communication for the purpose of persuasion
A. strategy
– big picture , how a person will treat a mediation
ex: adversarial vs. problem-solving
1. distributional: fixed resources that lead to a winner take all result; loser leaves with less
2. integrative: resources can be expanded and sides don’t necessarily have to end up with less
B. tactic
– logistics or behavior dictating how the strategy will be carried out
i. preparatory tactics
1. negotiate on your own turf: puts adversary at psychological disadvantage since he has to come to you
2. balance or slightly outnumber the other side: the side with fewer reps is usually at a disadvantage since it will tire more readily and be less able to control the discussion, an adversary who is outnumbered may feel too insecure to bargain seriously
3. time the negotiations to advantage: if adversary is anxious to settle quickly, arrange to negotiate when you can spend a lot of time at it, this will make adversary make major concessions to avoid further loss of time
4. know the facts thoroughly: unprepared lawyers are at a disadvantage and may feel pressured to compromise to avoid revealing ignorance in an extended discussion
5. lock yourself in: announcing a public position from which an attorney won’t retreat will show adversary that you’ll lose face if you stray from it, this shows your position is nonnegotiable
6. designate one of your demands as a precondition: if a precondition is met, you are at a psychological disadvantage, a substantive gain, and fewer items which are subject to compromise in the discussion that follow
ii. initial tactics
1. make the other side give the 1st offer: party making the first offer suffers the disadvantage of conceding that it really wants to settle
2. make your 1st demand very high: outrageous demands become more justifiable as after substantial discussion. Reasonable compromises are likely to be pushed to a worse settlement than coul
ir legitimacy, integrity. Look at how they’ve negotiated in the past.
3. Think of negotiating conventions: how open should you be in negotiations, should you withhold information, etc.
4. Consider logistics: who should negotiate, where should negotiation take place, when, etc.
5. Set aspiration levels: what contract value should you strive for, what is your reservation price?
a. opening gambits
1. who should make the first concrete offer: don’t open so conservatively that your offer falls well within your adversaries acceptance region
2. gauge your reaction to an extreme first offer
3. protect your integrity: try to avoid disclosing information (such as your reservation price)
b. negotiation dance
1. pattern of concessions: the most common pattern of concessions is monotone decreasing which is the intervals between your decreasing offers become successively smaller, signaling you are approaching your limit (which doesn’t have to be your reservation price)
c. end play
1. making commitments: signal that some value is as far as you can or will go. Ex: threaten to break off negotiations and leave it vague as to whether you’ll consider starting up again
2. breaking commitments gracefully: get new info from clients, add new issues, have another negotiator from your side replace you
3. help adversary break commitments gracefully: don’t let adversary disengage from agreement without too much loss of face. Ex: say a situation has changed, when it hasn’t.
4. introducing an intervenor: if you suspect your latest rejected offer is well within adverary’s price range and you refuse to move lower toward your own reservation price, you might have to give up and break off negotiations. Before doing that, suggest bringing in a mediator.
