Although the issue has not yet gained the prominence of its Iranian analogue, it is essential to begin conducting a sober analysis of whether the benefits of negotiating with the Taliban outweigh the costs. While there are many negotiations relevant to the Afghan War—between the U.S. and its NATO allies, between the U.S. and the Afghan and Pakistani governments, and between the Pakistanis and the Taliban—this paper will focus on whether the United States, together with its allies in Kabul or NATO, should negotiate with the Taliban.

To bring a coherent logic to the complexities of this cost-benefit analysis, I will apply the decision-making framework described by Professors Mnookin and Blum in their article “When Not to Negotiate” and elaborated upon in Professor Mnookin’s forthcoming book, Bargaining with the Devil. This framework focuses the inquiry on five key issues: 1) the parties’ prioritized interests, 2) their best alternative to a negotiated agreement (BATNA), 3) potential negotiated outcomes, 4) the probability of implementation, and 5) the direct and indirect costs of negotiation. The framework then focuses on the related considerations of legitimacy and morality. Mnookin and Blum argue that while we should not always “bargain with the devil,” our ingrained biases often lead us to reject negotiation prematurely, and we should therefore establish a rebuttable presumption in favor of negotiating.[1] With this in mind, I conclude that although it may indeed be too soon for direct talks between the U.S. and the Taliban, it is not too soon for indirect talks to probe the Taliban’s interests and to seek a path to a zone of possible agreement (ZOPA) and a mutually beneficial outcome.

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Transactional law, centered on structuring voluntary and private business deals, and civil litigation, involving legal disputes between parties who need the public courts to impose a judgment, occupy different worlds in the practice of law.  On those rare occasions that these legal disciplines do intersect, it is neither by design nor is it typically welcomed with enthusiasm. However, one noteworthy exception exists – in the freeing and creative world of collaborative law.  Within the framework of resolving disputes collaboratively, the skill sets and insights of these two disciplines within the law not only are allowed to complement each other, they bring out the best in each other and their practitioners.  The result is a synergy in which the sum is greater than each of its parts, and the elusive win-win resolution of a dispute.

The two authors know this to be true not only in theory, but also because they experienced this outstanding result in a collaborative case.  The proof is found in the outcome of a breakup, and resulting successful re-structuring, of a closely-held corporation of four partners.  Paul Faxon, a commercial transactional attorney, represented three majority shareholder partners, and Michael Zeytoonian, a litigator, represented the minority shareholder partner.  The two collaborative lawyers discovered that each of their respective perspectives brought different insights into the collaborative process, feeding off each other and providing the necessary elements to complete the resolution of the dispute in a way that met the needs of all parties.

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Think of all the ways our lives have been made easier and more efficient with technology.  With just the click of a button (or a mouse), we have the world at our fingertips.  Communication alone has changed drastically over the past decade (for the better, right?).  Besides face-to-face meetings and phone calls, we have email, instant messaging (IM), text messaging, eNewsletters, blogs, list-servs, online forums and threads, virtual reality, webcasts and webinars (and more that I’m not aware of, I’m sure) that enable us to keep in touch.  Just a short time ago our primitive ancestors communicated via fax, courier and (gasp!) snail mail.  Life really has gotten easier.

Or has it?

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“We decided that we wanted to regain control of our money, of our documents, of our reputation and of our time,” said Andrew Byers, overseer of The Toro Company’s mediation program, regarding why The Toro Company of Bloomington, MN implemented a mediation program to settle their in-house and customer disputes as an alternative to litigation. [1]

According to professional mediator Michael Roberts:

“We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney’s fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter. The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes. Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.” [2]

This article discusses why today’s American businesses and corporations should practice alternative dispute resolution by implementing mediation-approach programs into their business plans to settle customer, employee and contractual disputes in order to save money and resources beyond dollars rather than immediately resorting to traditional litigation. In-house ADR programs and policies, specifically mediation, enhance corporations’ business relationships, save valuable time, and offer significant cost savings in comparison to traditional litigation.[3]

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The U.S. military presence in Japan has provided great stability in a region of uncertainty. In recent years, the importance of the U.S. military in Asia has been underscored by continuing volatility in North Korea, the growth of terrorist organizations and pirates, and expanded human trafficking.[1] A continued relationship between the Japanese and the U.S. military is vital to regional stability, the protection of maritime commerce routes, and the countering of proliferation of weapons of mass destruction, terrorism, piracy, and human trafficking.[2]

In the last thirty years, relations between local Japanese communities and the U.S. military have been strained, largely due to incidents occurring in the local communities involving off-duty military personnel. According to one source, over 4700 crimes have been committed in Japan by U.S. military personnel since 1972, causing extensive anti-American sentiment throughout the country.[3] The conflicts between U.S. military bases and local Japanese communities have found resolution at the highest levels of government. In the process, the interests of several parties have been lost. Perhaps a new method of dispute resolution should be considered: namely, mediation.

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Businessdictionary.com defines the Self-Fulfilling Prophecy as “[E]xpectations about circumstances, events, or people that affect a person’s behavior [such that] he or she (unknowingly) creates situations [that fulfill] those expectations.”  In other words, your predictions about a situation (and therefore how you act in that situation) will cause those predictions to come true.

But what does this have to do with you as a negotiator?  More than you think.  In a typical negotiation with at least two partners per side, your beliefs about them, and what you anticipate from them, will influence your actions, which will in turn influence their reactions.  When your counterparts on the other side of the table are in disagreement with each other, they look to you to confirm or disconfirm their various hypotheses.  Therefore, your actions inevitably and directly prove one side correct and the other incorrect, thereby empowering one faction over another, influencing their behavior and completing the cycle of self-fulfilling prophecies!

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On November 28, 2008, New York Giants wide receiver Plaxico Burress accidentally shot himself in the thigh with an unlicensed handgun while partying at a New York City nightclub. Beyond the poor judgment of the incident itself was the short-sightedness of the team’s response to it, which demonstrated just how inadequate problem-solving can be when conducted without the use of a structured approach.

The major flaw lay in failing to properly diagnose the problem and failing to sufficiently brainstorm possible solutions. In this way, the Giants ended up treating the symptoms of the problem rather than the problem itself. Deliberately following a model such as the Four Quadrant Tool for problem-solving* would have helped the team avoid the classic misstep of jumping straight from describing the symptoms of a problem (step one) to generating an action plan going forward (step four).

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Ask Luis Moreno-Ocampo, chief prosecutor of the International Criminal Court in The Hague, how he thinks we can make the world a better place, and he’ll answer without hesitation that we must teach young people how to deal with conflict better.  In a conversation with us earlier last year, he spoke about our obligation to foster a generation of global citizens equipped to create value and improve relationships within families, across organizations, and among nation-states.

We believe the best way to fulfill this obligation is to encourage passion, teach theory, develop skills, and provide real-world opportunities through a multi-pronged approach involving combined classroom-clinical curricula, internships and jobs with clear professional development plans, and innovative customized experiences such as fellowships.

Blending Classroom and Clinical Education

Conflict management education requires the development of blended classroom-clinical curricula. It should begin as a fundamental component of youth education and continue through higher levels of academia. We need to move toward creating school-wide workshops, after-school international conflict management organizations, and negotiation competitions.

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As ADR practitioners get out and educate the public about the various alternative dispute resolution processes, we frequently hear some of the same questions asked. People want to know the differences between this approach and that one, between what I do and what other lawyers do, between facilitative and evaluative mediation styles.  In order to best help our clients, we need to be able to successfully and clearly answer their questions.

What’s the difference between arbitration and mediation?

What is the difference between mediation and collaborative law? What does a case evaluator do differently from a mediator?

Where does the word “ombuds” come from, and how is an ombuds different from a human resources person?

How is mediation used as part of the collaborative process different from mediation that takes place in litigation?

Is arbitration all that different from litigation?

If we as ADR practitioners educate the public about the tremendous untapped resources available to them within the ADR spectrum, and engage in ongoing discussion with our potential clients about the value of ADR and the differences between approaches, we will be more successful in educating end users and referral sources about our respective services.  And we will achieve greater buy-in and use of our ADR services by the public.

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When a family is divorcing, they can choose to go the typical route–litigation–or an increasingly common alternative–mediation.  In addition to those more traditional choices, couples now have the option of what’s been come to be known as the “collaborative process.”

In the collaborative law model (also known as Collaborative Practice), each client hires a collaboratively-trained attorney.  Clients and their attorneys sit down together for four-way meetings structured with the goals of fair dealing and transparent negotiating. The parties and their attorneys articulate the underlying goals and interests of the divorcing parties and strive to reach those goals in order to create a fair and reasonable separation agreement.

There are several keys, in my view, to a successful collaborative law situation. Together, all of these requirements comprise the total “collaborative commitment.”

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