Term Paper: ADR Alternate Dispute Regulation and Negotiating Deals

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ADR

Alternate Dispute Regulation and Negotiating Deals

As individuals, transactional attorneys or litigators, lawyers must develop and in some instances maintain relationships despite substantive differences and opposing positions. Getting Together Building Relationships as we Negotiate, focuses on common misconceptions in relationship building and how to develop relations during the often adversarial negotiation process. Roger Fisher & Scott Brown, Getting Together Building Relationships as we Negotiate (2d ed. 1988). The authors, Fisher and Brown, emphasize that too often individuals expect that relationships should be founded on reciprocity and getting one's interests cared for even at the expense of the relationship. However, Fisher and Brown explain how the relationship should be treated separately from the substantive disagreement. They inform the reader that the key to negotiating a comfortable compromise to a substantive disagreement requires the parties to focus on rationality, understanding, communication, reliability and acceptance.

I. Rationality

According to the authors, an important component in negotiations is to use emotions as a guide, but not let them dominate the decision making process. According to Fisher and Brown, "when emotions in a relationship dominate thought, we are likely to see a downward spiral of destructive behavior." Id. At 46. However, in decision-making, one should not disregard his emotions. They motivate one's desires and help one to choose a course of action. They further help one develop a sense of attachment for that person or entity represented. In law, emotions and emotional effect are a factor in determining both fault and damages, such in Intentional Infliction of Emotional Distress of Negligent infliction of Emotional Distress tort cases. Cal. Civ. Code. §3333 (2009). Additionally, attorneys who can sympathize with the plight of their clients are likely to work harder to win their clients a judgment, and can play to the jury's sense of sympathy as well. Emotions are an important factor in decision-making, but just as in IIED where the court recognized the damaging effect of overwhelmingly strong actions on one's ability to act, in relationships strong emotions can cause destructive behavior.

Achieving an appropriate balance of emotion and reason can be accomplished by developing an understanding of one's own emotional state ad not reacting when emotions are high (by allowing time to cool down). This notion is recognized in criminal law's voluntary manslaughter or heat of passion killing charge. In this crime, a person reacts quickly to adequate provocation that arouses a sudden and intense passion in the mind of an ordinary person that causes him to lose control without adequate cooling time. Cal. Pen. Code § 192 (2009). Although the law recognizes the overwhelming effect that emotion can have on one's actions, it also recognizes that often these actions are either morally or legally reprehensible and so punish individuals who do not give themselves adequate time to cool down before choosing a plan of action. The book also recommends consulting uninterested third parties before acting to make sure that one is not placing too high of an emphasis on emotions instead of the substantive issue. Also, asking a third party to mediate is a good method of keeping emotions in check during a discussion. Id. At 54.

As an attorney, it is important to understand how a client's emotions could become aggravated during the course of proceedings and to counsel the client ahead of time on how to deal with such an issue. Whether dealing with such an issue means that the client will refuse to respond to opposing counsel's remarks, or will have a pre-determined fall-back answer will depend on the client and the subject matter. Id. At 59-60. Additionally, if during contract negotiations, one can anticipate whether any statements or contract terms will illicit an emotional response from opposing counsel, one can be prepared to not only remain calm himself but to help to calm opposing counsel so that both sides can efficiently negotiate the terms of the contract.

II. Understanding

It is well-known that misunderstandings between two parties can easily become deal-breakers. The authors stress the importance of attempting to understand the other side so as to avoid mistakes of fact or partisanship during negotiations. The barriers to understanding include not realizing one's lack of knowledge, fear of being wrong and not knowing how to develop a better understanding. Id. At 66. The second barrier is something that each person will have to learn to overcome individually, but the other elements can be negated by inquiry. This becomes increasingly important in negotiations with foreign entities since the custom, culture and language create additional misunderstandings between parties. Id. At 67. By always assuming that one does not know enough about the other party's position, one even break through the second barrier. If not knowing enough is a constant state, then it will become a comfortable state and not one which an individual must fear. The result being that making inquiry is an easier task to accomplish. According to the book, understanding another in negotiations requires stepping outside oneself to learn the other party's interests and values while being able to unlearn preconceptions about that party. Id. At 70-7. A mediator can also be helpful in learning about another party's position and understanding the rationale for such a position by having that individual act as the other side, such as occurs in war games. Id. At 81.

III. Communication

Three barriers to communication include assuming there is no need to discuss an issue, any tendency to communicate only by giving orders, and sending mixed messages. Id. At 86. Where there is a final integrated written contract between two parties, one party cannot singularly make changes to the terms of that writing without first discussing it with the other party, or such contract could likely become voidable by the affected party. The same is true for all relationships, including legal working relationships. Decisions were two parties are involved require a discussion between the two parties. There is always a need to discuss, and failing to recognize such need causes problems in the relationship. One must remember that this communication requirement is required of all interested parties, and to be successful all parties must be willing to speak, listen and actively apply any messages of topic. Id. At 88. This includes avoiding interruptions, inquiring about anything unclear and speaking about oneself in the first person instead of speaking about the other party. Id. At 93-7.

Additionally, if parties are not direct in their message, miscommunications can result that send mixed messages to the other party. Further, as indicated above, one must not let his emotions control his communication, or positive statements may be interpreted as hostile. Id. At 90-1. If necessary, to avoid miscommunications, all interested parties can plan the communication. This will help each party to clarify his reasoning to assist the other party's understanding. Id. At 98-9. The end result will be that the other party, once he can understand the first party's position, will be better able to apply that purpose to an efficient discussion.

IV. Reliability

In every relationship it is important to be wholly trustworthy. As an attorney, one is bound by the Rules of Professional Conduct in all business transactions. Such rules require that an attorney be truthful and not knowingly misrepresent information. Additionally, in contract negotiations, if one party knowingly misrepresents information the contract could be voidable for lack of consent, or the misrepresenting party could be liable in court for damages caused by such misrepresentation. The authors indicate that the best ways to ensure that one operates in a reliable fashion is to avoid erratic conduct, be careful not to unintentionally commit to a particular course of action, not take promises lightly and to always be honest. However, even if an individual follows this course of performance, one still may run afoul of unintentionally misleading the opposition. When this occurs, a reliable individual will take the necessary steps to clarify any misunderstanding.

Additionally, honesty is an interesting concept for an attorney who has a duty of confidentiality to his client. Honesty does not require full disclosure. Id. At 113. However, an attorney must not reveal any information relating to the representation of a client. For in-house attorneys dealing in contract negotiations, much information that could be the subject of interest to the opposing counsel is confidential information. In being honest, an attorney should let the other side know when he cannot discuss a certain topic because of duty or privilege. This way, misunderstandings are less likely than if the attorney avoided the discussion altogether.

As mentioned in the forward by the authors, in building a relationship, one should not rely on reciprocity. Thus, although one party is honest and straightforward in his conduct, he must not rely on the opposing party to behave equally. There is only a minimal amount that any individual can do to affect honesty and reliability from another party. The authors discuss the balance of supervision in building reliability. In an employer, employee situation, supervision is necessary to keep an employee on… [END OF PREVIEW]

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