Negotiation
BATNAs in Negotiation: Common Errors and Three Kinds of “No”
April 20, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than 14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991), as well as many later interpretations, can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First,...
April 20, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than 14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991), as well as many later interpretations, can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First,...
2018 US News Dispute Resolution Rankings
April 14, 2017
As always, we post the USNews dispute resolution program specialty rankings here once they’re released, and this year is no different. This year Pepperdine reclaims the top spot from Ohio State. Pepperdine has been ranked number 1 for 12 of the last 13 years !!! 1 Pepperdine 2 Ohio State 3 Harvard and Missouri (tie) 5 Mitchell Hamline 6 Oregon 7 Marquette 8 Yeshiva (Cardozo) 9 UNLV 10 Arizona State 11 Northwestern 12 UC Hastings 13 Texas A&M 14 ...
April 14, 2017
As always, we post the USNews dispute resolution program specialty rankings here once they’re released, and this year is no different. This year Pepperdine reclaims the top spot from Ohio State. Pepperdine has been ranked number 1 for 12 of the last 13 years !!! 1 Pepperdine 2 Ohio State 3 Harvard and Missouri (tie) 5 Mitchell Hamline 6 Oregon 7 Marquette 8 Yeshiva (Cardozo) 9 UNLV 10 Arizona State 11 Northwestern 12 UC Hastings 13 Texas A&M 14 ...
Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding
April 7, 2017
This article synthesizes insights from the University of Missouri Center for the Study of Dispute Resolution symposium, “Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding.” There is a wide range of concepts, issues, perspectives, theories, and applications from different disciplines with little consensus in the negotiation field. This symposium was conducted to help clarify negotiation theory and make it more useful for scholars, faculty, students, and practitioners...
April 7, 2017
This article synthesizes insights from the University of Missouri Center for the Study of Dispute Resolution symposium, “Moving Negotiation Theory from the Tower of Babel Toward a World of Mutual Understanding.” There is a wide range of concepts, issues, perspectives, theories, and applications from different disciplines with little consensus in the negotiation field. This symposium was conducted to help clarify negotiation theory and make it more useful for scholars, faculty, students, and practitioners...
BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’
April 3, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early...
April 3, 2017
The best alternative to a negotiated agreement (“BATNA”) concept in negotiation has proven to be immensely useful. In tandem with its value in practice, BATNA has become a wildly successful acronym (with more than14 million Google results). But the initial characterization of this concept in Getting to Yes (Fisher, Ury, and Patton 1991) as well as many later interpretations can be problematic, limiting, and even misleading in several ways, which this article analyzes and illustrates. First, early...
Auditor Settlements of Securities Class Actions
March 16, 2017
Some corporate law scholars have concluded that auditors do not have sufficient legal incentive to detect securities fraud and should be governed by a strict liability standard. This study assesses this argument by examining a dataset of 554 class actions alleging an accounting restatement filed from 1996 through 2007. Because some but not all of these restatement cases named an auditor defendant, it is possible to analyze whether variables such as the liability standard affect both the decision...
March 16, 2017
Some corporate law scholars have concluded that auditors do not have sufficient legal incentive to detect securities fraud and should be governed by a strict liability standard. This study assesses this argument by examining a dataset of 554 class actions alleging an accounting restatement filed from 1996 through 2007. Because some but not all of these restatement cases named an auditor defendant, it is possible to analyze whether variables such as the liability standard affect both the decision...
Don’t Let the Hardball Get the Best of You!
March 8, 2017
The other day, I came upon a blog post from the Program on Negotiation (PON) at Harvard Law School that is worth discussing. It is entitled “10 Hard Bargaining Negotiation Tactics” by Keith Lutz (January 10, 2017). I have seen one or more of these tactics often in mediation and despite my best efforts to help a party understand what is happening, I am not always “heard” or “listened” to. The first tactic is one with which everyone is familiar: “extreme demands followed by small,...
March 8, 2017
The other day, I came upon a blog post from the Program on Negotiation (PON) at Harvard Law School that is worth discussing. It is entitled “10 Hard Bargaining Negotiation Tactics” by Keith Lutz (January 10, 2017). I have seen one or more of these tactics often in mediation and despite my best efforts to help a party understand what is happening, I am not always “heard” or “listened” to. The first tactic is one with which everyone is familiar: “extreme demands followed by small,...
Henry A. Kissinger as Negotiator: Background and Key Accomplishments
February 14, 2017
Following a brief summary of Henry A. Kissinger’s career, this paper describes six of his most pivotal negotiations: the historic establishment of U.S. diplomatic relations with the People’s Republic of China, the easing of geopolitical tension with the Soviet Union, symbolized by the signing of the first Strategic Arms Limitation Treaty (“SALT I”), the limited success of the SALT II negotiations, the mediation after the 1973 Arab-Israeli war of the agreement on Sinai disengagement between...
February 14, 2017
Following a brief summary of Henry A. Kissinger’s career, this paper describes six of his most pivotal negotiations: the historic establishment of U.S. diplomatic relations with the People’s Republic of China, the easing of geopolitical tension with the Soviet Union, symbolized by the signing of the first Strategic Arms Limitation Treaty (“SALT I”), the limited success of the SALT II negotiations, the mediation after the 1973 Arab-Israeli war of the agreement on Sinai disengagement between...
BATNAs in Negotiation: Common Errors and Three Kinds of ‘No’
February 13, 2017
The Best Alternative To a Negotiated Agreement (“BATNA”) concept in negotiation has proved to be immensely useful. It is widely accepted that a more attractive BATNA (“walkaway option”) often increases one’s bargaining power. A minimally necessary condition for an agreement to be mutually acceptable is that each side prefers the deal to its BATNA. Thus, how well each party’s BATNA serves its interests determines whether a zone of possible agreement even exists — within which any mutually...
February 13, 2017
The Best Alternative To a Negotiated Agreement (“BATNA”) concept in negotiation has proved to be immensely useful. It is widely accepted that a more attractive BATNA (“walkaway option”) often increases one’s bargaining power. A minimally necessary condition for an agreement to be mutually acceptable is that each side prefers the deal to its BATNA. Thus, how well each party’s BATNA serves its interests determines whether a zone of possible agreement even exists — within which any mutually...
The Black Hole Problem in Commercial Boilerplate
February 10, 2017
Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem...
February 10, 2017
Rote use of a standard form contract term can erode its meaning, a phenomenon made worse when the process of encrustation introduces various formulations of the term. The foregoing process, when it occurs, weakens the communicative properties of boilerplate terms, leading some terms to lose much, if not all, meaning. In theory, if a clause is completely emptied of meaning through this process it can create a contractual “black hole.” The more frequent and thus potentially more pervasive problem...
A ‘Grand’ Unified Negotiation Theory… in Context
February 9, 2017
Negotiation research is pursued from the perspectives of a number of disciplines including psychology, organizational behavior, labor relations, decision sciences, game theory, communications, legal studies, international relations, public policy, and others. Added to these are best practices from several fields engaged in intervention in conflicts. By now, the negotiation field has accumulated a considerable volume of wisdom regarding what drives people and entities to negotiate, how they behave...
February 9, 2017
Negotiation research is pursued from the perspectives of a number of disciplines including psychology, organizational behavior, labor relations, decision sciences, game theory, communications, legal studies, international relations, public policy, and others. Added to these are best practices from several fields engaged in intervention in conflicts. By now, the negotiation field has accumulated a considerable volume of wisdom regarding what drives people and entities to negotiate, how they behave...
