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Negotiation & ADR

Prof. John Barkai William S. Richardson School of Law University of Hawaii

Negotiation & ADR are Professional and Personal Skills

Handling of Problems Western .American Asian designed by Liu Young .

hawaii.www2.edu/~barkai Google: John Barkai .

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Dragon Naturally Speaking “Premium” edition .$145 Amazon Academic pricing $100 Various microphone options .

Not everyone can be a great chef .

Not everyone can be a great chef But. everyone can learn to cook .

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“Even a sheet of paper has two sides” Japanese Proverb .

“Every coin has two sides” Proverb .

Perspective View .

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I’ve got it again Larry. . An eerie feeling like there is something on top of the bed.

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Teller. Smith. and Wilson go to Heaven."Then it's agreed. and Fenton and Miller go to arbitration. Paducci. Watson. and Horner go to Hell. Jones. .

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.This course will ….

After taking this course A recent student said … .

After taking this course My girl friend is like a changed woman .

After taking this course My girl friend is like a changed woman (because she thinks I'm a changed man) .

Common Forms of Dispute Resolutions • Negotiation: • Mediation . – A neutral third party assists the parties to reach a negotiated settlement but has no power to decide the issues in dispute. – Evidence is presented to a judge or jury for a decision under formal rules of law and procedure • Trial in Court: .Conciliation: • Arbitration: – Discussion for the purpose of settling differences. – A neutral third party is given the power to decide the issues in conflict. The arbitrator decides after hearing arguments and reviewing evidence.

ADR Alternative Dispute Resolution .

.Tawad (bargain) Tan Pan English or Mandarin Mediation Agna Kandal Tin Teng Madhyastha Madhyasti Penengah Chotei Joongjae Perantaraan Kamwahu Pagbatiin Tiao Jie English or Mandarin Sri Lanka Taiwan Thailand Vietnam Samuthiya Tam Pan Jeraja Dam Phan Samatha Mandalaya Tawa Shay Klaiklea Hoa Giai Compiles by Professor John Barkai and students from the University of Hawaii’s JEMBA Program (Japan Focused Executive MBA) and JAIMS’ (Japan American Institute for Management Science) Intercultural Negotiations class.HOW DO YOU SAY “ADR”? Country / Language Cambodia Hong Kong India Hindi Oriya Indonesia Japan Korea Malaysia Pohnpei Micronesia Philippines China Singapore Negotiation Ka cho cha Tam Pun Samvad Muleiba Negosiasi Kosho Hyoepsang Rundingan Paronogorong pene Negosasyan .

each year? Guess! .S.How many lawsuits are filed in the U.

ncsconline.org/d_research/csp/CSP_Main_Page.html A 2% decrease over prior year .Over 106 Million Cases Filed in Federal and State Courts in 2010 Source: Examining the Work of State Courts. 2010 http://www.

104 Million State Court Cases 2 Million Federal Court Cases .

2010 . State Court Cases 56 20 19 6 2 Traffic Criminal Civil Domestic Juvenile Source: Examining the Work of State Courts.104 Million U.S.

007 Terminated Circuit Court 2011-2012 .013 Filed 4.Hawaii Civil Cases 7.

How many jury trials? Guess! .

15 Jury Trials 53 Non-Jury Trials Circuit Court Civil Cases in Hawaii 2011-2012 .

Jury Trials 1 Contract Trials 12 Tort Trials 3 Other” Trials Circuit Court Civil Cases in Hawaii 2011-2012 .

Hawaii Court Statistics Civil Jury Trials 15 6 14 12 17 12 10 16 2012 2011 2010 2009 2008 2007 2006 2005 .

161 Jury Trials 58 Non-Jury Trials Circuit Court Criminal Cases in Hawaii 2011-2012 .

5 % Criminal cases are terminated in Hawaii by jury trial .

4 % terminated in Hawaii by jury trial 2011-2012 Civil Cases Circuit Court .0.

.S.3% Jury Trials in U.

6% Non-jury .161 Jury Trials 58 Non-Jury Trials Circuit Court Criminal Cases in Hawaii 2011-2012 Of 3575 cases terminated – 4.5% by Jury. 1.

>5 % Criminal cases are terminated in Hawaii by jury trial .

Trial Rates: 0.8% District Court 13% Small Claims 2010-2011 .

Vanishing Trials – Federal Court – 1962-2002 12% to 2% .3% Jury Trials in U.S.

Total Trials 450 400 350 300 250 200 150 100 50 0 All Civil Contracts Torts 1964 1967 1970 1973 1976 1979 1982 1985 1988 1991 1994 1997 2000 2003 2006 Vanishing Trials – Hawaii Circuit Court – 1964-2010 2009 .

0 1.0 4.0 19 78 19 80 19 82 19 84 19 86 19 88 19 90 19 92 19 94 19 96 19 98 20 00 20 02 20 04 20 06 20 08 20 10 All Civil Contracts Torts Hawaii Circuit Court – 1978-2010 .Percentage of Jury Trials 1964-2010 6.0 5.0 0.0 3.0 2.

What is the appropriate amount of Conflict? Conflict Conflict Conflict Conflict .

Theodore E. Steinway . It is proof that out of great tension may come great harmony. 243 taut strings exert a pull of 40.In one of our concert grand pianos.000 pounds on an iron frame.

Cathy Costantino & Christina Sickles Merchant . . barren landscape devoid of life and color.CONFLICT IS LIKE WATER: Too much causes damage to people and property Too little creates a dry.Designing Conflict Management Systems .

All polishing is achieved by friction .Mary Parker Follett .

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Who has the Power? .

Information is Power .

The easiest way to improve your negotiation skills is to A__ M___ Q________! .

Ask More Questions .

Expand the pie .

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Two Key Ideas about Negotiation & ADR 1) Focus on Interests not positions 2) Improve the Communication (information & temperature) .

Positions Interests .

Positions WHAT? Proposed Solutions .

Interests WHY? Are WHY you want the positions .

Mommy Daddy (oranges) .

Juice Rinds .

Some Common Interests We Have Acceptance Fulfilment Accountability Independence Achievement Knowledge Opportunity for Input Autonomy Privacy Belonging Recognition Clarity Acknowledgment Responsibility Love Commitment Affection Respect Nurturance Competency Appreciation Relaxation Consistency Satisfaction Efficiency Safety Fairness Security Freedom from Fear Trust Understanding Validation .

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Interests Goals Needs Dreams Desires .

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Same bed. different dreams .

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Iceberg Theory “Below the line” issues Huge & invisible Purposely hidden Out of awareness .

Advantages and Disadvantages of Cooperation and Competition .

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“And notice. gentlemen. this year’s model has twenty per cent more trunk space.” .

You can't always get what you want but if you try sometimes you might find you get what you need The Rolling Stones .

S. Declaration of Independence .U.

53 CA 32 TX 29 NY 1 AL DE MT ND SD VT WY Constitution .

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the withdrawal of Israeli armed forces from the Sinai. varying in width from 20 km.stationing of Forces No more than one division of Egyptian armed forces [permitted] Only United Nations forces and civil police equipped with light weapons to perform normal police functions will be stationed within an area lying west of the international border and the Gulf of Aqaba. 1978 Framework for the Conclusion of a Peace Treaty between Egypt and Israel The following matters are agreed between the parties: . .the use of airfields …for civilian purposes only.the full exercise of Egyptian sovereignty . (24 miles). [limited border armed forces] .The Camp David Accords September. and . (12 miles) to 40 km.

President of the United States of America .The Camp David Accords For the Government of the Arab Republic of Egypt: Muhammed Anwar al-Sadat For the Government of Israel: Menachem Begin Witnessed by: Jimmy Carter.

pdf .GETTING TO YES Separate People from Problem Interests not Positions Invent Options Objective Criteria BATNA http://mediationadvocacy.com/Getting%20to%20Yes.

BATNA Best Alternative To a Negotiated Agreement .

YOUR BATNA TELLS YOU WHEN TO WALK NOT WHEN TO SIGN .

Tolanski Curve Illusion .

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Conflicting Interests .

Examples of Complementary Interests One party might care Other party might more about: care more about: Form. appearance Substance .

appearance Substance Economic considerations Political considerations .Examples of Complementary Interests One party might care Other party might more about: care more about: Form.

Examples of Complementary Interests One party might care Other party might more about: care more about: Form. appearance Substance Economic considerations Political considerations External considerations Internal considerations .

appearance Economic considerations External considerations Immediate future Substance Political considerations Internal considerations More distant future .Examples of Complementary Interests One party might care Other party might more about: care more about: Form.

Examples of Complementary Interests One party might care Other party might more about: care more about: Form. appearance Economic considerations External considerations Immediate future Tangible results Substance Political considerations Internal considerations More distant future The relationship .

Examples of Complementary Interests One party might care Other party might more about: care more about: Form. appearance Economic considerations External considerations Immediate future Tangible results Progress. change Substance Political considerations Internal considerations More distant future The relationship Respect for tradition .

Examples of Complementary Interests
One party might care Other party might more about: care more about:
Form, appearance Economic considerations External considerations Immediate future Tangible results Progress, change Precedent Substance Political considerations Internal considerations More distant future The relationship Respect for tradition This case

Cuban Missile Crisis 1962

OK Mr. President, let’s talk.

Cuban Missile Crisis
1962. The U.S. placed nuclear missiles in the U.K., Italy, and Turkey with the capability to strike Moscow. The Soviet Union began to build missiles bases in Cuba for ballistic nuclear missiles with the ability to strike most of the continental United States. The U.S. is considering the following options: pressure diplomatically the Soviet Union to remove the missiles, attack the missile bases by air, set up a naval blockade of Cuba, invade Cuba. Cuba and the Soviet Union, who supplied the missiles, claim that Cuba has a right to protect itself from a potential U.S. attack.

A. Positions

B. Possible interests

Soviet Union No missiles in Cuba.Cuban Missile Crisis Positions U.S. Yes Missiles can be in Cuba. .

S.maintain image as a world power .Cuban Missile Crisis Possible Interests U. invasion of Cuba support other Communist nations.S.S.S. . attack of Soviet Union .protect the U.prevent the Soviet Union from placing nuclear weapons close to the U.Security . . “first strike” missile attack . .prevent U.-maintain image as a world superpower Soviet Union -prevent U.S. from easy.

S.S. in exchange for a U.-built Thor and Jupiter IRBMs deployed in Europe and Turkey.Cuban Missiles Resolution Publicly.S. the U. . agreed that it would dismantle all U. public declaration and agreement to never invade Cuba. subject to UN verification. Secretly. the Soviets dismantled their offensive weapons in Cuba and return them to the Soviet Union.

Power Imbalances .

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Smart Bargaining: Doing Business with the Japanese Graham & Sano Japan External Trade Organization's (JETRO) .

Cuckoo Strategies Sengoku period battle 15th century warring states period in Japan .

kill it.) –by Hideyoshi Toyotomi – (creative) Nakanunara.) –by Leyasu Tokugawa–(patient) . koroshiteshimae.) –by Nobunaga Oda – (ruthless) Nakanunara. wait for it. nakashitemiseyou. hototogisu (If the cuckoo does not sing. hototogisu (If the cuckoo does not sing. hototogisu (If the cuckoo does not sing. nakumadematou.Cuckoo Strategies Nakanunara. coax it.

36 Chinese Strategies Applied to Negotiations .

PREPARING AND PLANNING .

Abraham Lincoln . I'd spend the first hour sharpening the ax.If I had six hours to chop down a tree.

Planning Planning on roaming the neighborhood with your buddies again? .

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Cuckoo Strategies Sengoku period battle 15th century warring states period in Japan .

coax it.) –by Leyasu Tokugawa–(patient) .) –by Hideyoshi Toyotomi – (creative) Nakanunara. hototogisu (If the cuckoo does not sing. hototogisu (If the cuckoo does not sing. wait for it.) –by Nobunaga Oda – (ruthless) Nakanunara. nakashitemiseyou.Cuckoo Strategies Nakanunara. koroshiteshimae. kill it. nakumadematou. hototogisu (If the cuckoo does not sing.

They would never reveal every fact, because successful negotiation does not hinge on full disclosure.

1 minute audio clip

Distributive Negotiation
• Competitive • Win-Lose • Zero-Sum

The Pie

• Buyers = as low as possible • Sellers = as high as possible • Long term relationship not important • Claiming as much value as possible in the negotiation

Integrative Negotiation
• Cooperative • Win-Win • Expanding the possibilities

The Pie

• Buyers and Sellers work together to get more • Long term relationship is important

The value of the relationship

• Creating Value in negotiation

Buyer’s Target Point . Seller’s Target Point BR. Buyer’s Resistance Point SR. Seller’s Resistance Point BT.Positive Bargaining Zone Seller’s Bargaining Range Positive Bargaining Zone Buyer’s Bargaining Range $5 $10 $15 $20 ST.

Negative Bargaining Zone Seller’s Bargaining Range Negative Bargaining Zone Buyer’s Bargaining Range $5 $10 $15 $20 ST. Seller’s Target Point SR. Buyer’s Target Point . Seller’s Resistance Point BR. Buyer’s Resistance Point BT.

Sally Swansong .

or even often) about the money .101 Ways to get a bigger piece of the Pie It is not (always.

Know your BATNA Focus on interests. Prepare. not positions Know your interests Prioritize your interests Improve your BATNA before the negotiation starts Improve your BATNA during the negotiation . Prepare.BEFORE THE NEGOTIATION        Prepare.

BEFORE THE NEGOTIATION Set a high goal for yourself  Estimate their BATNA  Estimate their interests  Estimate the ZOPA (zone of possible agreement)  Talk with others who have negotiated with them .

AT THE TABLE 1

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Develop a relationship before talking money Recognize their negotiating style Don't narrow your negotiations to one issue Don't quickly accept the first offer even if you think it's fair. If you agree in haste, you may repent at leisure Ask lots and lots of questions Active listen

AT THE TABLE 2

Pace them Make the first offer to anchor (if you have enough info) Start with an extreme, but not outrageous offer If they make the first offer, ignore any extreme offer and anchor your offer in a favorable position Justify all offers and concessions

AT THE TABLE 3
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Take a seat to your advantage (not detriment) Wait for TOP to finish before responding Hint at, or disclose your BATNA, to improve their offer Mislead them about your BATNA Determine their interests Ask. Estimate based upon available info. Assume and ask Qs to confirm Be willing to make the first concession Don't make multiple, unilateral concessions Concede slowly Concede in small steps Make you concessions 1/2 of what you would naturally do

to induce concessions  Don't be in a hurry to make the deal  Ask for an "extra.AT THE TABLE 4 "That sounds a little high (low)." Nibble  Don't take it personally  Frame issues as "gains" for them. not losses  Use silence  Consider if they have a hidden agenda  Keep the emotional temperature low ." .

AT THE TABLE 5          Have limited authority Think about the long term Is it worth serious negotiating on this one? Don't appear desperate for the deal Invent options for mutual gain Seek objective criteria Act confident and informed "Split the difference" only when it is to your advantage Flinch .

Selective perception.AT THE TABLE 6          Offer contingent concessions Don't act like you "won" or you won't next time Don't underestimate your offer Be willing to walk away (at least for a while) Be willing to suggest mediation Make a larger concession than you thought necessary Most psychological principles suggest your offer is too extreme Over optimistic. Do not reject their offer based because of reactive devaluation .

Ask "how" they will negotiate. they won't be negotiating that way. Recognize "dirty tricks" and comment on them immediately. If they don't know what "win-win" means. Avoid multiple concessions if your concessions are not matched by their concessions.TIPS FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR Flinch. . Remember your BATNA! Get another opinion. Take time out.

TO IMPROVE YOUR NEGOTIATIONS: Think in terms of interests Classify the type of negotiation: Deal or Dispute Distributional or Integrative Expand the pie Use a planning chart Investigate the opposing negotiator Consider both strategy and tactics Set high goals for yourself Practice before you negotiate Determine your BATNA .

but only if they do too .TO IMPROVE YOUR NEGOTIATIONS: Ask lots of questions Separate the people from the problem Generate alternatives by brainstorming Frame your proposals as a gain to them Flinch when you hear a high demand Protect your facts when necessary Be willing to make concessions.

Take time out. they won't be negotiating that way.TIPS FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR Flinch. . If they don't know what "win-win" means. Remember your BATNA! Get another opinion. Recognize "dirty tricks" and comment on them immediately. Avoid multiple concessions if your concessions are not matched by their concessions. Ask "how" they will negotiate.