Principles of Alternative Dispute Resolution by Stephen Ware

Author:Stephen Ware
Language: eng
Format: epub
ISBN: 9781683281672
Publisher: West Academic
Published: 2016-09-15T00:00:00+00:00

267

Chapter 3

NEGOTIATION

Table of Sections

Sec.

A. NEGOTIATION CONTEXTS

§ 3.1 Dispute Negotiation and Transactional Negotiation

§ 3.2 Dispute Negotiation and Lawyers; Settlement Negotiation Defined

§ 3.3 Settlement Negotiation and the Shadow of the Law

§ 3.4 The Bilateral Monopoly of Settlement Negotiation

B. THE SETTLEMENT/LITIGATION CHOICE

§ 3.5 Valuing a Case

(a) Introduction to Case Valuation

(b) Factors Lawyers and Clients Should Consider in Valuing a Case

(c) The Timing of the Settlement/Litigation Choice

(d) Risk Aversion and Diversification

(1) Risk Aversion

(2) Diversification

(e) Expected Value, BATNA, and the Bottom Line

(f) Psychological Barriers to Valuing a Case Accurately

(1) Availability Bias

(2) Anchoring Bias

(3) Egocentric Biases

(4) Overconfidence Bias

(g) Valuation of Criminal Cases

§ 3.6 Disagreements between Lawyer and Client About the Settlement/Litigation Choice

(a) Generally

(b) Legal Fees

(1) Hourly Billing

(2) Contingency Fees

(3) Retainers and Other Fixed-Fees (Especially in Criminal Practice)

(4) Legal Fees Paid Through Liability Insurance

(c) Professional Responsibility

C. NEGOTIATION THEORY

§ 3.7 Zero-Sum and Positive-Sum

§ 3.8 Zero-Sum (Distributive) Negotiation

268

§ 3.9 Positive-Sum (Integrative) Negotiation

(a) An Example on the Time Value of Money

(b) The Importance of Multiple Issues

§ 3.10 Positive-Sum (Integrative) Negotiation is Not Always Worthwhile, or Even Possible

§ 3.11 Bottom Lines and Settlement Zones

(a) Case Valuations Determine Bottom Lines Which Determine Settlement Zones

(b) Predictions About the Results of Litigation

(1) Predictions That Usually (But Not Always) Result in a Settlement Zone

(2) Predictions Less Likely to Result in a Settlement Zone: Cases of Over-Optimism

(c) Conclusion

§ 3.12 Settlement Zone Does Not Ensure Settlement (Barriers to Settlement)

(a) Ignorance of Settlement Zone’s Existence or Boundaries

(b) Dividing the Value Created by Settlement

§ 3.13 Bottom Lines and Settlement Zones in Positive-Sum (Integrative) Negotiation

D. APPROACHES TO NEGOTIATION

§ 3.14 Terminology

1. THE ADVERSARIAL/COMPETITIVE APPROACH

§ 3.15 Opening Offers

§ 3.16 Few and Small Concessions

§ 3.17 False Concessions

§ 3.18 Concession Tricks and Escalation Tactics

§ 3.19 Deception and Information

§ 3.20 Misinformation about Bottom Lines and the Strength of Your Case

(a) Generally

(b) Lying about One’s Bottom Line

(c) Projecting Confidence in One’s Case and Lack of Interest in Settling

(d) Effect of Misinformation about Bottom Lines

§ 3.21 Psychological Warfare

(a) Anger, Threats, Ridicule, Accusation, and Intimidation

(b) Negotiate on Your Own Turf

(c) Outnumber Your Counterparts

(d) Negotiate When You Have Time and Your Counterpart Does Not

(e) Lack of Authority

(f) Locked into Position

(g) Feign Irrationality

269

(h) Wolf in Sheep’s Clothing

§ 3.22 Drawbacks of the Adversarial/Competitive Approach

2. THE COOPERATIVE APPROACH AND THE PRISONER’S DILEMMA

§ 3.23 The Cooperative Approach

§ 3.24 The Prisoner’s Dilemma and the Importance of Reputation

(a) The Prisoner’s Dilemma

(b) The Importance of Reputation and the Incentive to Cooperate

§ 3.25 Tactics for a Cooperative Lawyer With an Adversarial/Competitive Counterpart

3. THE PROBLEM-SOLVING APPROACH

§ 3.26 Overview of Problem-Solving

(a) Positive-Sum

(b) Coinciding Interests (With a Tax Law Example)

(c) Logrolling Multiple Issues

(d) Problem-Solving Tactics Listed

§ 3.27 Interests, Not Positions

§ 3.28 Communicating Your Side’s Interests

§ 3.29 Variety of Solutions

§ 3.30 Drawbacks of the Problem-Solving Approach

4. GENDER, CULTURE, RACE AND ETHNICITY

§ 3.31 Gender

§ 3.32 Culture, Race and Ethnicity

E. PREPARING FOR NEGOTIATION

§ 3.33 Introduction

§ 3.34 Identifying Your Client’s Interests, Bottom Line, and Specific Goals

§ 3.35 Identifying Other Party’s Interests, Bottom Line, and Specific Goals

§ 3.36 Adjusting During Negotiation

(a) Adjusting Approaches During Negotiation

(b) Adjusting Your Bottom Line during Negotiation

§ 3.37 Specific Preparations

F. LAW GOVERNING SETTLEMENT

§ 3.38 Criminal and Tort Law; “Good Faith” in Negotiation

§ 3.

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.