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"ADR Prof Blog" - 5 new articles

  1. What is Negotiation?, Part 2
  2. Professor Jill Gross to give Hopkins Lecture on Arbitration on November 12th
  3. Puffing Sucks
  4. “Labels Suck”
  5. What is puffing?
  6. More Recent Articles
  7. Search ADR Prof Blog
  8. Prior Mailing Archive

What is Negotiation?, Part 2

We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base these observations on my review of law school negotiation texts in a forthcoming article as well as general conversations with colleagues.

 

I think that this conception of negotiation misses critical parts of the process and thus leads to misconceptions about how it really works and what lawyers really do.

 

Of course, the settlement events intended to resolve the ultimate disputes are very important and deserve a lot of attention by practitioners, students, and scholars.

 

To get a good understanding of final settlement events, it usually helps to also understand the interactions leading up them.

 

Typically, a case is a long string of related negotiations if one defines negotiation as a process of seeking agreement, as described in an earlier post.

 

For example, way before the final settlement event, litigators may negotiate about acceptance of service of process, extension of time to file papers, conditions during the pendency of the litigation, discovery schedules, resolution of discovery disputes, exhibits to be used at trial, or a gigazillion other things. Similarly, in a transactional negotiation, lawyers may reach agreements about exchange of information and coordination of actions needed before the parties are ready to negotiate the ultimate deal.

 

People often don’t think of these preliminary interactions as negotiations because the lawyers work out agreements with little or no difficulty. But the agreements are critical events. Lawyers can – and do – argue about all of these things in some cases. If they didn’t reach these agreements about these preliminary matters, the cases generally would be longer, more expensive, and more contentious. And the existence (or absence) of these preliminary agreements can easily affect the ultimate negotiations.

 

And these are just the negotiations with the other side. Lawyers also negotiate with lots of other people during a case.

 

As I describe in my article, lawyers agree with clients about the tasks that they each will perform and how the lawyer will to respond to the other side at various points during the litigation, and attorney’s fee arrangements. Lawyers reach agreements with people such as co-workers in their firms, process servers, investigators, court reporters, technical experts, financial professionals, and mediators. Lawyers regularly reach agreements with judges about case management issues such as discovery plans and schedules, referral to ADR procedures, and ultimate issues during judicial settlement conferences. Some communications are not oriented to reaching agreement (and thus are not negotiation), but there are a lot more such communications than most people realize.

 

So lawyers are veritable negotiation machines.

 

In litigated cases, we should think of negotiation as what Marc Galanter calls “litigotiation,” which he defines as “the strategic pursuit of a settlement through mobilizing the court process.” He writes that “negotiation of disputes is not an alternative to litigation. It is only a slight exaggeration to say that it is litigation. There are not two distinct processes, negotiation and litigation; there is a single process of disputing in the vicinity of official tribunals.” Marc Galanter, Worlds of Deals: Using Negotiation to Teach About Legal Process, 34 J. Legal Educ. 268, 268 (1984).

 

Viewed from this perspective, most pretrial activity is negotiation. We don’t normally think of formal discovery as part of negotiation, for example, but it generates information used in the ultimate negotiations and affects the bargaining dynamics.

 

One lawyer in my study said, “It is all negotiation from the time suit is filed. You are constantly negotiating or setting up the negotiation. It doesn’t just happen. You are negotiating from the outset, setting up where you want to go. You are judging [the other side] and they are judging you.” He elaborated, “Negotiations don’t occur in a week or a month. They occur in the entire time of the lawsuit. If anyone tells you they aren’t negotiating, they really are. Every step in the process is a negotiation. You don’t call it negotiation, but in effect, that’s what it is.”

 

I have focused on negotiation in the litigation context, but these ideas can be adapted for transactional negotiations as well as negotiations that don’t involve lawyers.

 

What do you think? Email me. You never write. You never call.

 

To be continued . . .

 

John

    


Professor Jill Gross to give Hopkins Lecture on Arbitration on November 12th

Our wonderful colleague and fellow blogger, Jill Gross, has been named the James D. Hopkins Professor of Law at Pace Law School. She will be giving a lecture on November 12, 2014 at noon at Pace, entitled, “Setting the Record Straight: The Supreme Court and 21st Century Arbitration”.

We at the blog are very proud of Jill and wish her luck in giving what looks to be an outstanding lecture. Here is the synopsis of the lecture:

“The Supreme Court has decided more than two dozen cases under the Federal Arbitration Act (FAA) since 2000 – arising primarily from a commercial, consumer, employment, or securities dispute. Those decisions, particularly those interpreting FAA §2, have contributed to the Court’s modern arbitration jurisprudence that creates a strong national policy favoring arbitration, enforces agreements to arbitrate against virtually any defense, pushes many individual claims into arbitration against the will of one or more parties, and suppresses other claims, particularly those of small dollar value.

Yet, to the extent those decisions contain language describing one or more aspects of the process of arbitration, they describe the nineteenth, and perhaps twentieth century practice of arbitration; not the reality of twenty-first century arbitration. The Court’s uninformed and out-of-touch decisions have crafted a legal framework regulating an arbitration process that largely no longer exists in most commercial arbitration forums today.

This lecture will explore the dichotomy between the Supreme Court’s theoretical understanding of arbitration on which its current FAA jurisprudence is based and the actual twenty-first century practice of arbitration which that jurisprudence regulates. Professor Gross will demonstrate that the Court’s refusal to engage with and recognize the current practice of arbitration has fueled the Court’s misinterpretation of the FAA, negatively impacted disputants in arbitration and contributed to the widely held perception that arbitration is unfair.”

Congratulations, Jill — this honor is well-deserved.

    

Puffing Sucks

With no one to edit my language here :-), let’s call a spade a spade.  My thanks to John and Art for starting a really interesting conversation about puffery.  Teaching both ethics and negotiation, the crossroads of “puffing” in negotiation is something that I get to talk about twice.  And it drives me crazy.  It’s just a nice name–a nice label–for lying.  Lying, through and through.

There are so many problems with puffing.  First, the lines of “puffing” are supposed to follow convention–which completely subjective.  So the lines are unclear and and they continue to move.  You can lie about your client’s intent.  “They would never accept that offer” is okay.  But you better bring the offer back to your client.  You can vaguely lie about whether you have an alternative to accepting their offer. “We have other people interested in this shopping mall” is okay. But you can’t be too specific about the lie. “We have another buyer showing up tomorrow to give us the list price.” will get you in trouble. And the winner of confusion by far is the interplay between 1.6–keeping client informational confidential–and 4.1–you shall reveal information to prevent fraud.  We know from Art’s work (and class interactions–I run DONS every year in my ethics class), that law students and lawyers mess this up regularly and at alarming rates.  (For more on this see Art’s study here, my article on running DONS in China here, and an article from Art, Peter Reilly and me on teaching negotiation ethics here.)

Second, following the rules on puffing is bad negotiation advice.  Even when you ‘can’ lie according to the rules, it is most often really bad strategically to do so.  And by the rules allowing “puffing” (let along that 1.6 and 4.1 are in different sections of the ethics codes and should be rewritten to follow one another), we create the illusion that this is something lawyers are supposed to do.

I actually think the rules should be cleaner–no lying.  If you are asked a question you do not want to answer–for example “how low will you go?”  “do you have other options?” or “what does your client plan on doing with this property?” –don’t answer it.  Don’t lie. Chances are it will be obvious you are lying, or the truth will come out later anyway, or you did not actually need to lie but think it’s easier.  This line drawing–and the fact that puffing is so fuzzy–is exactly what gets lawyers into trouble in the first place.

I know I would enjoy teaching negotiation strategies on how to deflect awkward questions more than the lines of puffing.  I would also feel a lot better about our profession.  Because the fact that puffing sucks often leads the public to think the same way about lawyers.

    


“Labels Suck”

So said the illustrious founder of our blog – at least until good taste or something else induced her to change the title of an article to the more borrrrrring, “Teaching a New Negotiation Skills Paradigm.” (On the other hand, it you really want to rack up the ssrn downloads, use a sexy title like “Fuck.” Pre-tenured colleagues, don’t try this at home.)

 

I mention Andrea’s pithy observation because, in commenting on my post about teaching about puffing, Art points out that there is confusion about the meaning of “puffing” as it is commonly used compared with the technical legal definition.

 

Alas, this kind of confusion is a common phenomenon in our business. In the Lawyering course in my school, we cover interviewing and counseling, negotiation, and mediation, among other things. The texts refer to lawyer- and client-centered counseling, positional interest-based negotiation, and evaluative and facilitative mediation (though these concepts have many other labels).

 

I dutifully taught these concepts and required students to define and apply them on the exam.  Until this year.

 

But I agree with Andrea. Our labels do suck. Although she focused only on the negotiation context, I would generalize this observation beyond that.

 

Students – and actually many of us – are pretty sloppy in our use of these terms. People often think of client-centered counseling, interest-based negotiation, and facilitative mediation basically as being nice and the opposite approaches as being tough (if not naughty).

 

So starting this year, I briefly defined the terms so that students recognize them and I described the problems with them – and then I warned them not to use the terms.

 

Instead, I focus on the concrete behaviors that these labels are supposed to represent. This is relatively easy regarding counseling because it focuses on a single dimension of allocation of decision-making between lawyers and clients. Regarding mediation, Len Riskin identifies a number of distinct behaviors distinguishing facilitative and evaluative mediation (and variations of these labels). Similarly, I found that negotiation texts identify a number of different characteristics of the competing models, with no consensus on what features are essential. So when I teach these topics now, I focus on the various dimensions of the concepts.

We have to live with terms like “puffing” because they are embedded in the law and have significant consequences.

 

But in the real world, people generally don’t use our labels. I suggest that we stop using them and, instead, shift toward using more concrete terms that are less confusing.

 

What do you think? Email me. You never write. You never call.

 

John

 

To be continued . . .

 

 

    

What is puffing?

John’s interesting post below leads me to ask a definitional question, what is puffing?  Some people believe it to be a broad term describing all dissembling in negotiation and other see it more narrowly, simply as exaggerating the positive qualities of an item.  It sounds like John’s definition is the former, while David Hoffman, author of the article The Best Puffery Article Ever, is more along the lines of the latter.  My old Blacks Law Dictionary from law school  goes with Hoffman, which is how I discuss the topic, but this may be a case where popular use is the trump card.  Years ago when discussing the definition of mediation Len Riskin said that how a term is used determines its meaning.  Maybe the horse is out of the barn with regard to puffing.  What’s your take?

Interestingly, the online version of Blacks does not include puffing in the words it defines.

 

 

 

 

    


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