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Negotiation Articles
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Rule 68 and Offers of Judgment, Part I: How They Work and Why You Should Care (9/30/08)
John DeGroote I once had a client tell me: “I’m in the outsourcing business, not the litigation business.” He would probably read the title to this post and say something like: “I’m a client. Why do I care about rule anything?” Whether you are a client or a lawyer involved in US litigation, Rule 68 and similar state rules are important to you for two reasons: they can get cases resolved when nothing else can, and few lawyers use them effectively.
Improvisational Negotiation: Moving Away from Conventional Wisdom (9/30/08)
Improvisational Negotiation represents a particular mind-set and approach to negotiation that is flexible and adaptable to a fluid set of circumstances. In the Improvisational Negotiation realm, there are no steadfast rules, grids, or specific definitions that must be adhered to. Rather, the success of this technique stems from the willingness to replace the traditional “one size fits all” textbook approach with a style that focuses on the moment and is based on creativity, acceptance of uncertainty and willingness to take risk.
Taxi: Heaven For Mediation (9/22/08)
Luis Miguel Diaz Taxi is a small and little known society on Earth where humans unlearned the belief that authorities and rules were necessary for conflict resolution. Roberta who is an old and attractive woman has an informal and straight forward conversation with Ivan a young and inquisitive man. Both are open minded people.
Why Getting To Yes Is the Most Vital Journey We Face (6/30/08)
John Sturrock GETTING to Yes is the seminal work on negotiation by Fisher and Ury. First published in 1983, it has been read by millions of business people, diplomats, lawyers and others around the world and is standard fare in universities in the United States and elsewhere. Recently, General Sumbeiywo, the man at the centre of the Southern Sudanese peace agreement, was asked what one book he would recommend to negotiators. Getting to Yes was his swift reply.
So You’ve Got a Beef. Now What? (6/09/08)
Gary Weiner Negotiating a good resolution to a conflict isn’t rocket science. There are a few things, though, that you should know if you want to do a better job in settling disputes on your own.
Pele: An Inspiration For Teamwork In Negotiated Solutions (6/09/08)
Luis Miguel Diaz Team work lies beneath negotiated solutions of complex problems. This article focuses on Pele who is regarded as the greatest soccer player of all times. No team sport evokes the intuitive drive for team work as soccer, where all eleven players of a team must cooperate. Soccer requires improvisation from the players to solve the strategic necessities of the soccer field. Can we learn from Pele processes for team work?
Thoughts on Mediation, Barack Obama, and Our Political Future (5/27/08)
Kenneth Cloke The emergence of Barack Obama as the front-runner for the Democratic nomination, and thus for the Presidency of the United States, presents us with unprecedented opportunities to influence global dispute resolution strategies and shift the prevailing paradigm of adversarial politics and diplomacy.
Negotiation Lessons from the Pawnshop (5/21/08)
Jay Folberg My resume is loaded with Alternative Dispute Resolution credentials: law school professor and then a dean; teaching negotiation and mediation for decades on several continents; writing books and dozens of articles; negotiating and mediating lawsuits with up to eight-figure payouts; and serving on umpteen advisory boards and “blue ribbon” commissions. But my resume is not the reason you should follow my advice about negotiation. The reason you should pay attention to what I have to say is that I am the son of a pawnbroker.
Bye Bye, Win-Win (5/19/08)
Edward P. Ahrens I previously played the iconoclast by suggesting that the “win/win” concept is falling on deaf ears. I have, however, now conceded that I nonetheless will continue to expound the win/win philosophy with hope that disputants will buy into it.
Of War and Negotiation: Part 3, The Allure of War: If You Want Peace, Study War (4/22/08)
Robert Benjamin Fighting, often including war---or flight, the avoidance of conflict, are the biological and emotional responses of animals and humans to a perceived threat or attack. Neuro transmitters fired in the brain correspond with feelings of fear or anger. Neuro-scientific studies strongly suggest that animals and humans are hard-wired to fight and there is a biological basis for the allure of war. By contrast, there is no corresponding neuro-biological inclination to negotiate.
Communicating Effectively During Conflict (4/14/08)
Lynne Eisaguirre When we’re arguing during a conflict, most of us are not listening; we are, as my son
says, “just talking to ourselves.” Clearly, one of the most important conflict resolution skills is listening. In order to listen well, we need to prepare.
Film Review: “John Adams” - The Reluctant Revolutionary and the Negotiation of the Declaration of Independence (3/25/08)
Robert Benjamin The difficult process and personal agonies that surround the unfolding
of most significant human events seldom survive historical redaction and
oversimplification. The story of the Declaration of Independence is an
example of an event of great complexity has all too often been reduced
to drivel more worthy of a fairy tale, or worse, twisted and contorted
by politicians to suit their purposes. The quality of the writing and
production of "John Adams" offers an important glimpse into the
difficult negotiations behind the scenes that have been largely ignored,
and the nature of leadership that was required. John Adams, who has not
shared the limelight with the other 'founding fathers,' comes to life as
he shifts from law protector to rebellious law breaker, and transforms
from citizen to leader. Not your standard hero type in look, bearing or
demeanor, it is fascinating to observe Adams, a self described,
'obnoxious' ideologue, learn to negotiate in critical times
Mediation: Managing A Negotiation (Part I) (3/17/08)
Gene D. Barr Mediation is the process by which participants in opposition acknowledge, consider and attempt to resolve their divergent interests by negotiation. Negotiation is a fluid dynamic subject to the gross environmental influences and personal perceptions of the participants. The act of negotiation is to present persuasive argument in a controlled environment confined to an established set of standards communally accepted as relevant to the subject matter at hand; it is persuasive argument presented by one participant with the intent to influence the decision making process of the other to garner a favorable outcome. The act of negotiation becomes art when a participant understands those elements that motivate and influence the other participant’s decision making process and controls and manipulates those elements to achieve an intended goal.
Negotiated solutions of complex problems with art: Picasso, Chaplin, Wittgenstein and the Beatles (3/10/08)
Luis Miguel Diaz This essay intertwines the creative endeavors of Picasso, Chaplin, Wittgenstein, and the Beatles---Picasso’s genius for painting; Chaplin’s genius for film making; Wittgenstein’s genius for philosophical remarks; and the Beatles’s genius for songs---to show how artistic and philosophical creativity can be utilized in reaching negotiated solutions for complex problems. We can learn much from art. A person may expand his or her knowledge of conflict management through art appreciation. Art depicts universal experiences that may be appreciated by all and may serve to educate us about creative processes.
The Guerrilla vs. The Humanist Negotiator (3/09/08)
Robert Benjamin This provocative article discusses and contrasts a hard-edged approach to negotiation with the recalcitrant Iranian administration that is in stark contrast to the more prevalent view of negotiation as a humanistic and rational enterprise. This goes to the heart of how negotiation and mediation are practiced, not just on a geopolitical level, but in all dispute contexts.
Obama’s Message - Mediation’s Political Triumph (2/25/08)
James Melamed Presidential candidate Barack Obama's main political message represents the absorption of the mediation movement's essential themes at the highest level of national and global politics. This is an accomplishment that should not go unnoticed and one that all mediators, whatever our political leanings, should take great pride in. Obama's candidacy is mediative consciousness' coming out party. Could it be that our work is finally paying off, not only in terms of "miracles in the mediation room," but also in terms of truly improving the way we as humans operate on planet earth? I think so. We are experiencing a popular paradigm shift right before our eyes and mediators and mediative thought are largely responsible.
Of War and Negotiation: Part 2: The Passion Play - Tolstoy’s War and Peace (1/21/08)
Robert Benjamin “Well, Prince, so Genoa and Lucca are now just family estates of the Bonapartes. But I warn you, if you don’t tell me that this means war, if you still try to defend the infamies and horrors perpetrated by that Antichrist----I really believe he is Antichrist---I will have nothing more to do with you and you are no longer my friend....”/ (1805 Book One, Chapter 1. Anna Scherer’s soiree, War and Peace, L. Tolstoy, p. 3.) So begins Tolstoy’s masterpiece with Anna Pavlovna Scherer remarking to Prince Kuragin at her soiree in Moscow in 1805, her view of the then current Napoleonic rampage through Europe that was soon to be directed toward Russia. The tone of that conversation was not so different from one I had with ‘Anne’, a modern day stand-in for Tolstoy’s Anna, at a /petite soiree---/a holiday open-house--- 202 years later and half a world away in Portland, Oregon. Most conflicts, regardless of the circumstances or context, follow the same script, be they personal, geo-political, or business disputes. In one way or another, their substance is about money, property, power and control, or truth, honor, and justice. The character casting, drawn from the original passion play, are, of course, clearly drawn between the hero/victim and the antagonist evil-doer, or Antichrist.** As a negotiator....probably not unlike an entomologist’s fascination with the behavior of ants under attack, I began to listen more closely; not so much with the particulars of the storyline, but for clues about how, if at all, it might be possible to shift and re-direct her anger and
frustration.
Conflict, Mourning And Aesthetics (What Happens When History Does Not Pass?) (1/21/08)
Dorit Cypis Aesthetics, the philosophy of questioning the integrity of form, offers brilliant tools for how to see, question, disassemble, reform, reframe, speculate and unknow. Aesthetics thrives on conceptual, formal, structural, perceptual and experiential conflict, needing to undo in order to see anew, displace in order to revise meaning, obscure in order to seduce, rupture in order to reveal the sublime....all this intentionally in the name of change. Aesthetics does not distinguish in value between chaos and order, form and formlessness, meaning and nonsense and as such can easily find its way around and between the disruptions, internal and external, psychological and political, of conflict.
A Riposte to Robert Benjamin’s Parry (1/14/08)
Darrell Puls I found Robert Benjamin’s article (Obama: Reflections of a Hard Core Negotiator) intriguing. I have met Mr. Benjamin, talked with him, read his work, and heard him speak. He is a very likeable guy, so I dove into the article with enthusiasm. That enthusiasm waned the farther in I got, however. In particular, I found myself increasingly disappointed by his weary-sounding observations as a “seasoned” and “guerilla” negotiator, particularly in referring to Barack Obama, where Mr. Benjamin declares that his “reflexive pragmatism makes him cringe at that idealism.” I hope Mr. Benjamin is right that he is simply over-reacting to the demise of his marriage, for this article seems out of character. In fact, I can’t tell if he is being sardonic, sarcastic, or cynical. For the sake of discussion, I will assume it is all three, though I am not at all certain which part is which!
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