Section XIV: Agents and Tribes
Section XIV turns to the often-present problems created by the fact that frequently a “tribe” has an “agent” of some variety to negotiate for it. First is a chapter analyzing what happens, and what you can still do, when the other side’s agent admits that a deal you thought was in the bag now has to undergo ratification by someone outside the room. The next chapter addresses situations in which the agents are numerous and the parties are diffuse—i.e., almost any major public negotiation. This is followed by a trenchant analysis of agents’ frequent failure to ensure that their clients have actually given informed consent to the agent’s actions.
One type of agent who tends to come in matched pairs is the specialized expert, called in to buttress a particular position—and liable to get into an expensive and unproductive duel with a similar expert hired by the other side. What to do about this is the subject of the next chapter. The section closes with an explanation of how, despite the tendency of parties to claim that “the facts” are immutable (though, of course, disputed), sophisticated negotiations with huge factual disputes have developed techniques for defining which facts are actually, and productively, subject to a negotiated approach to refining them. The result has been the settlement of (for instance) many supposedly-intractable cases that had disputed scientific components.
78. Shadow of the Tribe
John Wade
The negotiations have gone on for hours or months or years. A deal is at hand. And now, the other side mentions for the first time that the approval of some previously unremarked person is required, or there is no deal. Could you have prepared for this? Do you have options at this point? Are you, perhaps, the negotiator making the dread announcement that you must respond to a higher power before a deal’s a deal? Here, Wade meticulously deconstructs the circumstances that lead to “shadow of the tribe” negotiations, and suggests what you can do.
79. Multiparty Negotiations in the Public Sphere
Sanda Kaufman, Connie Ozawa and Deborah Shmueli
Most negotiation research in the laboratory, and much practical wisdom in the field, concerns the actions of “dyads”, i.e. pairs of individuals negotiating with each other. This is far from the real-world environment of major public disputes. And in such disputes, blindly following the typical advice from less complex environments can get the negotiator or mediator and the clients into real trouble. The authors use case studies from three highly dissimilar environments to unpack the negotiating differences that apply when the parties are many, the stakes are high, and the situation is unstable.
80. Agents and Informed Consent: After the 2008 Financial Crisis
Jacqueline Nolan-Haley
How can you-the-negotiator ensure that your client is really on board? Nolan-Haley argues that by paying more attention to “informed consent” not only before, but again at intervals during a negotiation, and taking care to reaffirm this as the process reaches agreement, agents will not only better serve their clients but reach better, more lasting agreements. Yet revisiting the subject, years after the 2008 financial shocks demonstrated the degree to which large institutions were ignoring these principles, she finds strong evidence that lawyers and other professionals with a duty to their clients have badly failed them. As a result, she concludes that if your attorney isn’t asking you the hard questions, it’s in your interest to ask the attorney why not. This chapter should be read in conjunction with Wade’s Shadow of the Tribe.
81. Dueling Experts
John Wade
Your case is complicated; it involves specialized knowledge, and without some help, the judge probably won’t understand it and the jury certainly won’t. Furthermore, your chances of negotiating a settlement depend on getting some degree of shared understanding with the other side of what the facts are. So you’ve hired your expert, and the other side has hired its expert—and now the experts themselves are locked in combat. Could you avoid this next time? In the meantime, what do you do now? Wade analyzes your options at every stage, and shows how even when the experts have delivered black-versus-white reports of the facts, you can still salvage the situation. This chapter should be read in conjunction with Adler on Negotiating Facts.
82. Negotiating the Facts
Peter Adler
Many believe that in negotiations as elsewhere, facts are the bedrock, the only things that can be firmly ascertained and then relied on, in a shifting universe of personalities, perceptions and preferences. Adler, steeped in the mediation of scientific disputes, begs to differ. Facts in science are routinely challenged. Factual disagreement is also at the heart of many public policy disputes, and cannot be successfully papered over by focusing either on interests or positions. Yet after years of experimentation, public policy negotiators and mediators have made considerable progress in developing systems and structures for uncovering the assumptions and data that underlie many difficult disputes. This makes it possible to address fact-driven disputes more productively—and the technology now exists to do this on a wider scale. Adler shows how. This chapter should be read in conjunction with Wade on Dueling Experts.
One type of agent who tends to come in matched pairs is the specialized expert, called in to buttress a particular position—and liable to get into an expensive and unproductive duel with a similar expert hired by the other side. What to do about this is the subject of the next chapter. The section closes with an explanation of how, despite the tendency of parties to claim that “the facts” are immutable (though, of course, disputed), sophisticated negotiations with huge factual disputes have developed techniques for defining which facts are actually, and productively, subject to a negotiated approach to refining them. The result has been the settlement of (for instance) many supposedly-intractable cases that had disputed scientific components.
78. Shadow of the Tribe
John Wade
The negotiations have gone on for hours or months or years. A deal is at hand. And now, the other side mentions for the first time that the approval of some previously unremarked person is required, or there is no deal. Could you have prepared for this? Do you have options at this point? Are you, perhaps, the negotiator making the dread announcement that you must respond to a higher power before a deal’s a deal? Here, Wade meticulously deconstructs the circumstances that lead to “shadow of the tribe” negotiations, and suggests what you can do.
79. Multiparty Negotiations in the Public Sphere
Sanda Kaufman, Connie Ozawa and Deborah Shmueli
Most negotiation research in the laboratory, and much practical wisdom in the field, concerns the actions of “dyads”, i.e. pairs of individuals negotiating with each other. This is far from the real-world environment of major public disputes. And in such disputes, blindly following the typical advice from less complex environments can get the negotiator or mediator and the clients into real trouble. The authors use case studies from three highly dissimilar environments to unpack the negotiating differences that apply when the parties are many, the stakes are high, and the situation is unstable.
80. Agents and Informed Consent: After the 2008 Financial Crisis
Jacqueline Nolan-Haley
How can you-the-negotiator ensure that your client is really on board? Nolan-Haley argues that by paying more attention to “informed consent” not only before, but again at intervals during a negotiation, and taking care to reaffirm this as the process reaches agreement, agents will not only better serve their clients but reach better, more lasting agreements. Yet revisiting the subject, years after the 2008 financial shocks demonstrated the degree to which large institutions were ignoring these principles, she finds strong evidence that lawyers and other professionals with a duty to their clients have badly failed them. As a result, she concludes that if your attorney isn’t asking you the hard questions, it’s in your interest to ask the attorney why not. This chapter should be read in conjunction with Wade’s Shadow of the Tribe.
81. Dueling Experts
John Wade
Your case is complicated; it involves specialized knowledge, and without some help, the judge probably won’t understand it and the jury certainly won’t. Furthermore, your chances of negotiating a settlement depend on getting some degree of shared understanding with the other side of what the facts are. So you’ve hired your expert, and the other side has hired its expert—and now the experts themselves are locked in combat. Could you avoid this next time? In the meantime, what do you do now? Wade analyzes your options at every stage, and shows how even when the experts have delivered black-versus-white reports of the facts, you can still salvage the situation. This chapter should be read in conjunction with Adler on Negotiating Facts.
82. Negotiating the Facts
Peter Adler
Many believe that in negotiations as elsewhere, facts are the bedrock, the only things that can be firmly ascertained and then relied on, in a shifting universe of personalities, perceptions and preferences. Adler, steeped in the mediation of scientific disputes, begs to differ. Facts in science are routinely challenged. Factual disagreement is also at the heart of many public policy disputes, and cannot be successfully papered over by focusing either on interests or positions. Yet after years of experimentation, public policy negotiators and mediators have made considerable progress in developing systems and structures for uncovering the assumptions and data that underlie many difficult disputes. This makes it possible to address fact-driven disputes more productively—and the technology now exists to do this on a wider scale. Adler shows how. This chapter should be read in conjunction with Wade on Dueling Experts.
Section XIV authors:
Peter S. Adler, PhD is a planner, mediator, facilitator and a principal in Accord 3.0, a professional network of people specializing in foresight, strategy, and cooperative trouble-shooting. Adler has worked in the government, business and the NGO sectors, and teaches advanced negotiation courses in the Department of Urban and Planning at the University of Hawaii. Prior executive experience includes nine years as President and CEO
of The Keystone Center (www.keystone.org), Executive Director of the Hawaii Justice Foundation, and founding Director of the Hawaii Supreme Court’s Center for Alternative Dispute Resolution. He is the author of three books and numerous articles.
Sanda Kaufman is Professor of Planning, Public Policy and Administration at Cleveland State University’s Levin College of Urban Affairs. Her research spans negotiations and intervention in environmental and other public conflicts; social-environmental systems resilience; decision analysis; program evaluation; and negotiation pedagogy. Her articles have appeared in the Journal for Conflict Resolution; the Negotiation Journal; Conflict
Resolution Quarterly; International Journal for Conflict Management; Negotiation and Conflict Management Research; Revue Négociations; and others. B. Arch. and M.S. in Planning, Technion; Ph.D. in Public Policy Analysis, Carnegie Mellon University.
Connie P. Ozawa is a professor in the Toulan School of Urban Studies and Planning at Portland State University, is Director of the PSU-China Innovations in Urbanization Program, and works with the National Policy Consensus Center. Her specialty areas are negotiation and conflict resolution, environmental policy and planning and planning education. BA in Environmental Studies, University of California, Berkeley; MA in
Geography, University of Hawaii; PhD in Urban Planning, MIT.
Jacqueline Nolan-Haley is a Professor at Fordham Law School, where she directs the ADR & Conflict Resolution Program and teaches courses in ADR, International Dispute Resolution, and Mediation. She is a member of the ABA Standing Committee on Mediator Ethical Guidance, and of the Ethics Committee of the ABA Dispute Resolution Section. Her recent publications include Mediation and Access to Justice in Africa: Perspectives from Ghana, 21 Harvard Negotiation L. Rev. 59 (2016); Mediation: The Best and Worst of Times, 16 Cardozo J. Dispute Resolution 731 (2015); and Procedural Justice Beyond Borders: Mediation in Ghana, Harvard Negotiation Law Review Online (co-author)
http://www.hnlr.org/2014/03/procedural-justice-beyond-borders/.
Deborah F. Shmueli is a faculty member in the Department of Geography and Environmental Studies and a co-Principal Investigator of the Minerva Center for Law and Extreme Conditions, University of Haifa, Israel. She is a planner specializing in public policy issues and has published widely in these areas. Strong foci are public sector conflict management, community and institutional capacity building. BS and MCP, MIT (1980); DSc,
Technion (1992).
John Wade is an emeritus professor of law of Bond University, Queensland, Australia. He practiced as a lawyer in Australia between 1987 and 2012, and also had an active mediation practice in organizational, family and commercial conflicts during those years. He has taught over 300 mediation and negotiation courses in Hong Kong, New Zealand, London, Canada, the U.S. and Australia. John has published over 100 books and articles (see epublications@bond.edu.au). His teaching awards include best law teacher at Sydney University (1989); at Bond University (1990); and in Australia (1998). John now lives in Vancouver, Canada with his growing family, and teaches intensive negotiation courses there.
Peter S. Adler, PhD is a planner, mediator, facilitator and a principal in Accord 3.0, a professional network of people specializing in foresight, strategy, and cooperative trouble-shooting. Adler has worked in the government, business and the NGO sectors, and teaches advanced negotiation courses in the Department of Urban and Planning at the University of Hawaii. Prior executive experience includes nine years as President and CEO
of The Keystone Center (www.keystone.org), Executive Director of the Hawaii Justice Foundation, and founding Director of the Hawaii Supreme Court’s Center for Alternative Dispute Resolution. He is the author of three books and numerous articles.
Sanda Kaufman is Professor of Planning, Public Policy and Administration at Cleveland State University’s Levin College of Urban Affairs. Her research spans negotiations and intervention in environmental and other public conflicts; social-environmental systems resilience; decision analysis; program evaluation; and negotiation pedagogy. Her articles have appeared in the Journal for Conflict Resolution; the Negotiation Journal; Conflict
Resolution Quarterly; International Journal for Conflict Management; Negotiation and Conflict Management Research; Revue Négociations; and others. B. Arch. and M.S. in Planning, Technion; Ph.D. in Public Policy Analysis, Carnegie Mellon University.
Connie P. Ozawa is a professor in the Toulan School of Urban Studies and Planning at Portland State University, is Director of the PSU-China Innovations in Urbanization Program, and works with the National Policy Consensus Center. Her specialty areas are negotiation and conflict resolution, environmental policy and planning and planning education. BA in Environmental Studies, University of California, Berkeley; MA in
Geography, University of Hawaii; PhD in Urban Planning, MIT.
Jacqueline Nolan-Haley is a Professor at Fordham Law School, where she directs the ADR & Conflict Resolution Program and teaches courses in ADR, International Dispute Resolution, and Mediation. She is a member of the ABA Standing Committee on Mediator Ethical Guidance, and of the Ethics Committee of the ABA Dispute Resolution Section. Her recent publications include Mediation and Access to Justice in Africa: Perspectives from Ghana, 21 Harvard Negotiation L. Rev. 59 (2016); Mediation: The Best and Worst of Times, 16 Cardozo J. Dispute Resolution 731 (2015); and Procedural Justice Beyond Borders: Mediation in Ghana, Harvard Negotiation Law Review Online (co-author)
http://www.hnlr.org/2014/03/procedural-justice-beyond-borders/.
Deborah F. Shmueli is a faculty member in the Department of Geography and Environmental Studies and a co-Principal Investigator of the Minerva Center for Law and Extreme Conditions, University of Haifa, Israel. She is a planner specializing in public policy issues and has published widely in these areas. Strong foci are public sector conflict management, community and institutional capacity building. BS and MCP, MIT (1980); DSc,
Technion (1992).
John Wade is an emeritus professor of law of Bond University, Queensland, Australia. He practiced as a lawyer in Australia between 1987 and 2012, and also had an active mediation practice in organizational, family and commercial conflicts during those years. He has taught over 300 mediation and negotiation courses in Hong Kong, New Zealand, London, Canada, the U.S. and Australia. John has published over 100 books and articles (see epublications@bond.edu.au). His teaching awards include best law teacher at Sydney University (1989); at Bond University (1990); and in Australia (1998). John now lives in Vancouver, Canada with his growing family, and teaches intensive negotiation courses there.