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Just Court ADR

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Posts Tagged ‘negotiation’

Considering the Role of Ongoing Relationships in Mediation

Susan M. Yates, November 18th, 2016

“Mediation is especially good for parties with an ongoing relationship.” This is axiomatic when it comes to mediation, right?

This weekend, I had an experience that shed new light on this old idea. I was at a sale of building materials. Although it was advertised as an auction, there were few attendees and so potential buyers simply haggled with the seller’s agent over the price of anything they wanted to purchase. While digging through boxes of tile, I had a front-row seat to the negotiations between the agent and a potential buyer over some marble.

The feints and parries were familiar to anyone who has mediated many cases.

“Well, I don’t know what these would cost,” said the buyer, trying to downplay her expertise and develop sympathy in the agent. But the agent responded, “Don’t try that dumb girl thing on me! I’ve dealt with you before. You are smart and you know what these would cost.”

“Look, I have other buyers who will give me what I am asking,” said the agent, trying to assert a BATNA. But the buyer responded, “Where? I don’t see any other buyers here!”

The agent also tried to make herself seem sympathetic, even powerless, with the plea, “The seller would have my head if I sold them for so little.” But the buyer replied, “You can do whatever you want!”

The potential buyer tried to make a small move look more attractive by changing the format of the offer to a total price, rather than a per piece price. But the agent turned the math back into price per piece.

They went back and forth on numbers with plenty of dramatic gestures and raised voices. Their eventual prices were $240 and $260.

And they both walked away from the deal over a $20 difference!

Why did these two experienced negotiators walk away from the deal? (more…)

Settlement Smarts for Self-Represented Litigants

Susan M. Yates, August 12th, 2014

Julie Macfarlane has written a useful guide for self-represented litigants participating in court-related settlement efforts, including settlement conferences with judges, mediations and direct negotiations with the other party’s lawyer. This could be a handy reference for court ADR programs to provide to parties.

The guide, “Settlement Smarts for Self-Represented Litigants: How to Use Settlement Processes Knowledgeably and Effectively,” is produced by the Canadian National Self-Represented Litigants Project. Thanks again to Richard Zorza’s great blog on access to justice issues for the heads up about this.

Benefiting from a Smooth Transition

Susan M. Yates, July 9th, 2013

Those of us in the ADR field know that coming together and coming apart are times that can be fraught with conflict whether these transitions involve individuals, families, corporations or non-profits. We also know that, with the right factors in place, these types of change can be healthy and offer great opportunities for all involved. With that context in mind, I am very pleased to announce that Resolution Systems Institute has spun off as an independent, non-profit organization after 18 years of operation and growth as an affiliate of the Center for Conflict Resolution (CCR) in Chicago. And the transition was remarkably smooth!

The factors that made this change so smooth are similar to those that enflame some deals and ease the way for others. One early, decisive factor: the leadership of RSI and CCR agreed about the core idea of becoming two organizations. (more…)

Negotiation ABCs and the “Fiscal Cliff”

Susan M. Yates, December 10th, 2012

To those of us who work in ADR and who know something about the negotiations process, the current wrangling in Washington about the “fiscal cliff” is not a surprise. Consider these familiar ABCs that are characteristic of negotiation:

  • Anchoring
  • BATNA
  • Courthouse steps

“Anchoring” is the strategy of initiating negotiations with a position that is very favorable to one’s own interests. Negotiators don’t start with their bottom line. They anchor the negotiations with a position that is as favorable as it can be without poisoning the discussion. Some may argue that the leaders on both sides missed the part about not poisoning the discussion, but they certainly have anchored at positions that are favorable to them. (more…)

Honoring Roger Fisher, ADR Leader and Innovator

Heather Scheiwe Kulp, August 29th, 2012

Most law school or business school students will, at some point, be asked to read, “Getting to Yes: Negotiating Agreement Without Giving In.” Written in 1981, the ideas the book espouses form the basis for much negotiation and mediation theory taught today. Any ADR practitioner, whether they’ve read the book or not, can give thanks for the life of Roger Fisher, Professor Emeritus at Harvard Law School and co-author of “Getting to Yes,” who passed away August 25, 2012.

Roger Fisher’s experiences in World War II prompted him to look for another, better way to resolve conflict without sacrificing people’s individual needs and interests. Thus, along with William Ury and Bruce Patton, Mr. Fisher developed the principle that people can be moved from focusing on their positions to identifying their underlying interests and coming up with creative solutions to have those interests met. The authors also co-founded Harvard’s Program on Negotiation and wrote extensively on negotiation theory and practice.

His ongoing work to promote peace through understanding each other’s true needs will forever shape the landscape of ADR. His passing is a loss to us all.