Positions vs Interests in Bargaining

"A position is….

A demand, or
A proposal, or
A preferred course of action

Key features:

It is specific
It involves doing, action
A position is the “What to do”

An interest is….

The reason(s) for a position, or
A goal or objective

Key features:

An interest is more general than a position, and open to interpretation
It is not an action

An interest is the “Why” behind the “What”

Read more in this article from the UNC School of Government.

Washington's Will Had ADR Clause

From this post from Death and Taxes - The Blog:

George Washington's Will included an ADR provision...as follows:

But having endeavoured to be plain, and explicit in all Devises--even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants--each having the choice of one--and the third by those two. Which three men thus chosen, shall, unfettered by Law, or legal constructions, declare their sense of the Testators intention; and such decision is, to all intents and purposes to be as binding on the Parties as if it had been given in the Supreme Court of the United States.

Personality Styles Affect Negotiations

"Not everyone negotiates from the same point of view. People have different stakes in a negotiation. Determine what issues concern the other party the most. Also, know what your style is like so you can best prepare to negotiate a win-win situation.

The following are the four major personality styles, and how to recognize these types:

1. Connecters: This type is down to earth, friendly and very people oriented...When dealing with this type, be open, honest, and start with some small talk...

2. Networkers:...The more they like and trust you, the more flexible they will be...They want to see the big picture-so hit on your key points first, and then bundle your small points together...

3. Producers:...These people tend to shoot straight and not mince words...Producers look for the best possible deal and pride themselves on their ability to get what they want...These people love the thrill of the negotiation, and you will disappoint them if you cannot present a compromise.

4. Analyzers: This type may...may remain more non-emotional during a negotiation....The best way to handle analyzers? Give them the facts... Analyzers require space in order to make a decision, and accuracy is most important to them."

Read more in this article from lifeintheusa.com.

Ten Positional Bargaining Tips

"1. Your power lies in your walk-away alternatives. Make sure that you have real, viable options that don't require an agreement...
2. Do not disclose your walk-away alternatives...
3. Figure out the walk-away alternatives of the other parties...
4. No offer is too high. Any offer is valid provided you can present objective criteria that prove each term of the offer fills to some extent the underlying needs of all parties.
5. Don't react emotionally...[to] tactics intended to intimidate, rush, draw out discussions, or otherwise derail the focus from underlying needs and mutual gain...Draw attention back to substantive interests and options...
6. Remember that all the needs presented are not of equal importance...
7. Listen...
8. Know the authority of each person in the room...
9. Analyze concessions...
10. Never be bludgeoned into splitting the difference..."

Read more in this article from batna.com.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

False Assumptions Lead to Wrong Conclusions

Regarding negotiations, "the best defense against a poor assumption is good preparation. Thorough knowledge of your topic, your goal, your strategies and objectives, your company, yourself, your opponent, his company, and the issues relating to the task at hand is the best way to insure your assumptions are reliable...

During your preparation separate what you know and what you assume to be the case. Then focus your conversation on validating your assumptions. In addition to using the preliminary casual discussion period to build a good working relationship or to create a healthy environment within which to negotiate, do not miss the opportunity to uncover false assumptions."

Read more in this how-to-negotiate post.

Technorati Tags: mediation, adr, negotiation, disputeresolution, alternativedisputeresolution

Tips for Avoiding Litigation

"Litigation is merely one tool used to attain specific goals, which may be achieved more efficiently by other means...and it is sometimes the best approach for resolving a dispute. For purposes of this article, though, we discuss some of the common reasons why disputes often result in litigation, which, had they been properly managed, could have been avoided...

Depending on one's perspective, any number of reasons can be listed to support an argument that litigation should be avoided. In this article, we list the five reasons...

1. Cost Control...
2. Risk Avoidance...
3. Distraction...
4. Damage to Business Relationships...
5. Public Relations...

Why Does Litigation Happen?

Some of the manageable reasons...

1. Stubbornness/Pride
2. Lack of Knowledge/Understanding
3. Passion/Emotions
4. Failure to Communicate
5. Greed

Five Common Sense Ways to Avoid Litigation

1. [Follow] The Golden Rule...
2. Improve Communications...
3. Analyze your company's historic performance to determine what activities typically result in getting you into litigation
4. Rapidly respond to potentially threatening developments in their earliest stages (i.e., don't sit on it
5. Incorporate risk shifting and litigation alternative provisions into your business practices

Many business disputes will be either directly or indirectly related to contractual instruments. Hence, one powerful way to avoid litigation is to include litigation avoidance provisions within your contractual instruments. [Numerous examples of such provisions are provided in the article]

Read much more in this article by Brit T. Brown.

Technorati Tags: mediation, adr, alternative+dispute+resolution, dispute+resolution, arbitration

Common Myths and False Truths about ADR

"7 Common Myths:

1. Arbitrators Split the Baby.
2. You Can’t Mediate Until Discovery Is Completed.
3. Asking to Mediate Is A Sign of Weakness.
4. Mediation is Simply Free Discovery.
5. Arbitrators Don’t Apply the Law.
6. Mediation is Just a Waste of Time and Money.
7. Mediation Just Delays the Ultimate Trial of the Case.

3 False Truths

1. Arbitration is Quick and Cheap. Yes, but…
2. A Mediator is a Mediator is a Mediator.
3. Arbitration Awards are Non-Appealable."

Read more in this article by Judith Meyer