Harvard Negotiation Law Review

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No Silver Burress for Plaxico’s Bullets: How an Unstructured Approach to Problem-Solving Can Produce Mixed-Up Results

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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[Read more…]

Tomorrow’s Peacemakers: How to Encourage the Next Generation of Conflict Management Professionals

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.

buying glasses online

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.

[Read more…]

Junctions Along the ADR Spectrum

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.

[Read more…]

Collaborative Law — A New Choice for Divorcing Families

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.”

[Read more…]

Reporting on Palin: Negotiations in Political Theater

By Erin Ryan

Ever since Sarah Palin’s selection as John McCain’s vice presidential running mate, the McCain campaign has engaged in a cut-throat, high-stakes negotiation with a uniquely hamstrung counterpart—the news media. Or at least, that’s how it would appear to a skilled negotiator, given the unmistakable hard bargaining tactics the campaign has regularly employed. Extreme demands, psychological warfare, bluffing, stonewalling—each day yields another expert recitation of classic bargaining tactics that you might expect to encounter while shopping for a used car, though not so much in an election that should epitomize our civic ideal of consensus-building in the marketplace of ideas. But here we-the-people are, stuck on the seamy sidelines of a used car lot, watching the campaign and the press throw down.

It’s not your standard wheeling and dealing, to be sure, but it’s a negotiation nonetheless. What are they bargaining over? Like all negotiations, it’s about what the parties want from one another. The press wants a good story, of course, within the bounds of maintaining public credibility. The campaign wants favorable press coverage for its candidates, hoping to generate public credibility of its own. So it has been since campaigning began. But in this election, the McCain campaign has perfected a slowly developing twist in the game, pursuing a new bargaining strategy with ruthless message discipline at the expense of credibility for all involved. The campaign would still like favorable press coverage for its vice presidential candidate, of course, but if it can’t have that, its secondary aspiration is to undercut the legitimacy of what unfavorable coverage it receives—and with it, the legitimacy of the news media in general. Since Palin’s debut, the campaign has chased this second goal with even greater vigor than the first, leaving us to wonder whether it is not the second-best thing at all, but what the campaign really wanted to begin with. (Witness the artistically orchestrated spectacle during the convention, in which the speakers rallied tens of thousands of delegates to boo the members of the media among them covering the event for the tens of millions of viewers watching it all happen on live TV.)

[Read more…]

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About HNLR

Negotiation, not adjudication, resolves most legal conflicts. However, despite the fact that dispute resolution is central to the practice of law and has become a “hot” topic in legal circles, a gap in the literature persists. “Legal negotiation” — negotiation with lawyers in the middle and legal institutions in the background — has escaped systematic analysis.

The Harvard Negotiation Law Review works to close this gap by providing a forum in which scholars from many disciplines can discuss negotiation as it relates to law and legal institutions. It is aimed specifically at lawyers and legal scholars.

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