Cardozo Law School and its Journal of Conflict Resolution are sponsoring the Jed D. Melnick Annual Symposium, “Is Mediation a Sleeping Beauty?”, on Monday, November 3, 2014 starting at 8:30 a.m. The impressive line-up of speakers includes many friends of Indisputably, and topics for sessions include the age-old questions: “Is She Sleeping?”, “Is She Beautiful?”, “Who is the Wicked Witch?”, and “Who is Prince Charming?”. Sounds like it will be very interesting. For more information, see http://cardozojcr.com/symposia/. To attend, RSVP to email@example.com.
I know that this sounds like another one of my dumb questions.
But the meaning of negotiation is surprisingly opaque. People have very different ideas about this. And the definition you choose has important practical implications.
I stumbled onto this problem as I studied and taught negotiation in recent years. In a forthcoming article on negotiation theory, I analyzed nine books used as texts in law school negotiation courses.
One text makes the following broad statement, “Anytime you deal with someone else, seeking to reach agreement on some matter, you are involved in a negotiation.”
By contrast, some texts indicate that negotiation occurs in the context of actual or potential conflict. People often reach agreements when there is no manifest dispute. For example, criminal defendants often accept plea bargains offered by prosecutors without making counter-offers. Presumably, some of these defendants believe that they have good legal claims but accept the deals because of the risk of greater penalties, lack of emotional and financial resources to fight the prosecution, or advice from their attorneys, among other reasons. However, some defendants presumably recognize that they are guilty and accept the deals as the best possible outcome. Many divorcing couples reach agreement with little or no dispute and probably so do people in other types of “disputes.” Similarly, some parties in transactional negotiations reach agreement with little or no dispute. Aren’t these interactions negotiations?
Since people could have a potential conflict about any issue, having only a potential conflict also does not seem to exclude interactions that might be considered negotiations. What process of seeking agreement does not involve a potential conflict?
Conventional conceptions of negotiation often involve various elements that do not necessarily occur in the process of reaching agreement. For example, some people think of negotiation as involving (1) an exchange of offers occurring close in time to each other, (2) multiple options for handling an issue, (3) an explicit quid pro quo, and/or (4) something different from normal conversation or professional courtesy.
Although sometimes it may be helpful to focus on processes that involve explicit disagreements or the other factors I just mentioned, ignoring interactions without such factors leads people to overlook much of lawyers’ everyday work of seeking agreements. When we use overly narrow definitions, I think that our work isn’t as helpful for practitioners and students as it should be. So, as a general definition of negotiation, I think that it is appropriate to use the broad, unqualified concept of seeking agreement.
What do you think? Email me. You never write. You never call.
To be continued . . .
Over the past year Stacie Strong (Missouri) has been publishing a tremendous number of pieces in the area of arbitration, among other things. See here for some of these pieces. Now that I’m teaching Conflicts of Law, I found “Recognition and Enforcement of Foreign Judgments in U.S. Courts: Problems and Possibilities” particularly compelling. Here is the abstract:
One of the core consequences of globalization has been the rapid increase in transnational litigation and the associated need to enforce judgments across national borders. This phenomenon has created a number of problems in cases involving U.S. parties, since foreign judgments brought to the United States do not fall within the confines of the Full Faith and Credit Clause of the U.S. Constitution. Rather than following the simple, easy and inexpensive judgment-recognition process used in domestic disputes, U.S. and foreign parties seeking to enforce a foreign judgment in the United States must adhere to a costly, complicated and largely unpredictable process that is governed almost entirely by state rather than federal law.
The current situation creates difficulties not only as a matter of civil procedure but also as a matter of constitutional and regulatory law. International trade and foreign affairs also suffer when a country fails to recognize and enforce foreign judgments in a predictable and principled manner.
The American Law Institute (ALI) has responded to the challenges in this area of law by drafting a proposed federal statute intended to overcome the various problems relating to enforcement of foreign judgments in the United States. However, the complexity of this area of law has precluded detailed discussion of the ALI recommendation to date.
Forthcoming revisions to the Restatement of Foreign Affairs make enforcement of foreign judgments an issue of critical and imminent importance. This Article fills the gap in critical commentary by undertaking a detailed analysis of the law relating to the recognition and enforcement of foreign judgments in the United States. The discussion not only considers the current enforcement regime but also provides a comprehensive assessment of the ALI’s proposed statute. In so doing, this Article provides courts, commentators and Congress with a full understanding of the various problems arising under existing law as a matter of practice and policy while also helping lawmakers determine whether and to what extent the ALI proposed statute meets its enunciated goals. Parties based in the United States and abroad also benefit from an increased understanding of the problems and possibilities relating to the recognition and enforcement of foreign judgments in U.S. state and federal courts.
My indefatigable colleague, S. I. Strong, organized an impressive symposium on judicial education and describes the relevance to DR as follows:
On October 9-10, the University of Missouri’s Center for the Study of Dispute Resolution (CSDR) convened its annual symposium, this year focusing on “Judicial Education and the Art of Judging: From Myth to Methodology.” Although this topic may seem outside the standard dispute resolution curriculum, the matters under discussion are in fact extremely relevant to a number of core dispute resolution concerns.
For example, the first panel of the day considered what it means to be a judge, an issue that precedes any discussion about judicial education. However, questions about the nature of judging are of equal interest to the dispute resolution community, given contemporary debates about the different roles and methods associated with litigation, arbitration and mediation. Indeed, this issue was at the core of the recent decision in Strine v. Delaware Coalition for Open Government.
The second panel considered the goals of judicial education. Here, panelists concluded that judicial education should aspire to more than “mere” efficiency and competency, and should instead help judges understand the social context of their decisions. This discussion is again relevant to dispute resolution specialists, since it suggests what optimally should be part of the education of neutrals in the field of ADR. Furthermore, one of the members of this panel, Prof. Catherine Rogers of Penn State Law, focused specifically on the education of judges relating to arbitration and considered how efforts to educate judges about arbitration, particularly international arbitration, can positively affect legal decision-making and the rule of law.
The third panel considered pedagogical questions relating to how judges should be educated. The speakers covered a diverse range of subjects, but the presentation by Prof. Brettel Dawson of Carleton University in Canada was especially notable for the way in which it combined empirical data regarding adult education with the special needs of judges. Many of the insights offered by Prof. Dawson could be applied with equal vigor to the education of young lawyers, particularly in the dispute resolution field.
Papers from the symposium will be published in early 2015 in the Journal of Dispute Resolution. More information on the two day event, including a list of the speakers, can be found on the University of Missouri website at http://law.missouri.edu/csdr/symposium/2014/.
Questions about the presentations or published papers should go to Prof. S.I. Strong at firstname.lastname@example.org.