Section IX: The Structures We Operate In
This section is on the structure and contexts of negotiation. It’s not necessary to delve into a foreign culture to find oneself flummoxed by structures that surround and define what you can do in a negotiation, but that often don’t reveal themselves easily. Section IX begins with a classic analysis of how even a major negotiation in an international setting has some predictable stages, in a somewhat predictable process. The same author continues with a chapter that defines some of these stages further, in terms of timing and ripeness.
Next is an analysis of how different dispute domains work—or in other words, how you might forewarn yourself in time to change to a more effective setting for your particular negotiation, and thus avoid the worst constraints. This is followed by a discussion of one very common setting in which the constraints are major for both sides—plea-bargaining—and in turn, by a chapter that discusses an even more common setting, arbitration, in which only one side suffers the major constraints (and unless you happen to be a major corporation, this means you.) Finally, Volume 1 closes with a chapter that addresses the still more common situation in which you, as an individual, must face off with a huge organization that has boiled all of its negotiation moves down to a script. When you read this chapter, you may find you have more leverage than you think.
46. Process and Stages
I. William Zartman
Every negotiation has a rhythm to it—whether lyrical, musical or mechanical. The rhythm regulates a progression which, once understood, can help you realize where you stand at any given moment. Here, Zartman outlines the process and the typical steps that negotiations must work through.
47. Timing and Ripeness
I. William Zartman
How do you know when it’s time to get serious about negotiating? When is a deal ready to be made? In the settlement of civil disputes, we often see parties expensively delaying negotiations, even waiting for mediation till they’re on the proverbial courthouse steps. Is there a science to this? From the perspective of international relations, Zartman analyzes the issue of ripeness and demonstrates when it’s time to settle.
48. Dispute Domains: Negotiation in its Social Context
Gale Miller and Robert Dingwall
Before metaphor and underneath framing lies the structure in which you find yourself negotiating. Because the structural elements are often buried, they can go unremarked. But many times, there is a choice of structure, or dispute domain, within which you may be able to pursue your negotiation. The authors use two particular domains of negotiation to explain how this works....and how you might foresee a need to switch to another process. This chapter should be read in conjunction with Gross on Arbitration’s Shadow.
49. Plea Bargaining: An Example of Negotiating with Constraints
Cynthia Alkon
Plea bargaining accounts for the disposition of a significant majority of criminal cases. Indeed, without this kind of negotiation, either the judicial and criminal prosecution systems would have to be radically enlarged, or they would collapse completely. Yet misunderstanding of how these negotiations work is rife. Alkon describes plea-bargaining’s varieties, its frequently severe constraints (which surprisingly affect prosecutors almost as badly as the defense), and outlines its potential to do better—with some relatively modest reengineering.
50. Negotiating in the Shadow of Adhesive Arbitration
Jill Gross
“Bargaining in the shadow of the law” is a famous phrase that by now has passed into negotiators’ and particularly lawyers’ subconscious. Yet as the backdrop for setting norms and expectations in negotiation, case law has been largely supplanted in recent years by a plethora of standardized, unilateral contracts which propel anyone with a subsequent grievance toward a private, confidential arbitration proceeding—and increasingly bar such individual parties not only from airing their concerns in court, but from joining with others similarly situated in a class action. The result has profound consequences for many who are trying to negotiate redress for all sorts of contract violations. This chapter should be read in conjunction with Miller & Dingwall on Dispute Domains.
51. Scripts: What to Do when Big Bad Companies Won't Negotiate
Carrie Menkel-Meadow and Robert Dingwall
The authors started with a “natural experiment”, involving a canceled flight and the resulting competition for the last seat on the last remaining plane out: in the real world, which negotiator gets that seat? Years of further study have combined with years of further sad experience, in which the authors increasingly found themselves grappling with customer service agents with routinized training and scripts for how to deal with dissatisfied customers, in one industry after another. Here, they survey the state of play across a wide range of environments which have now adopted such playbooks—and provide suggestions for how you can play in turn, with ingenious and effective responses.
Next is an analysis of how different dispute domains work—or in other words, how you might forewarn yourself in time to change to a more effective setting for your particular negotiation, and thus avoid the worst constraints. This is followed by a discussion of one very common setting in which the constraints are major for both sides—plea-bargaining—and in turn, by a chapter that discusses an even more common setting, arbitration, in which only one side suffers the major constraints (and unless you happen to be a major corporation, this means you.) Finally, Volume 1 closes with a chapter that addresses the still more common situation in which you, as an individual, must face off with a huge organization that has boiled all of its negotiation moves down to a script. When you read this chapter, you may find you have more leverage than you think.
46. Process and Stages
I. William Zartman
Every negotiation has a rhythm to it—whether lyrical, musical or mechanical. The rhythm regulates a progression which, once understood, can help you realize where you stand at any given moment. Here, Zartman outlines the process and the typical steps that negotiations must work through.
47. Timing and Ripeness
I. William Zartman
How do you know when it’s time to get serious about negotiating? When is a deal ready to be made? In the settlement of civil disputes, we often see parties expensively delaying negotiations, even waiting for mediation till they’re on the proverbial courthouse steps. Is there a science to this? From the perspective of international relations, Zartman analyzes the issue of ripeness and demonstrates when it’s time to settle.
48. Dispute Domains: Negotiation in its Social Context
Gale Miller and Robert Dingwall
Before metaphor and underneath framing lies the structure in which you find yourself negotiating. Because the structural elements are often buried, they can go unremarked. But many times, there is a choice of structure, or dispute domain, within which you may be able to pursue your negotiation. The authors use two particular domains of negotiation to explain how this works....and how you might foresee a need to switch to another process. This chapter should be read in conjunction with Gross on Arbitration’s Shadow.
49. Plea Bargaining: An Example of Negotiating with Constraints
Cynthia Alkon
Plea bargaining accounts for the disposition of a significant majority of criminal cases. Indeed, without this kind of negotiation, either the judicial and criminal prosecution systems would have to be radically enlarged, or they would collapse completely. Yet misunderstanding of how these negotiations work is rife. Alkon describes plea-bargaining’s varieties, its frequently severe constraints (which surprisingly affect prosecutors almost as badly as the defense), and outlines its potential to do better—with some relatively modest reengineering.
50. Negotiating in the Shadow of Adhesive Arbitration
Jill Gross
“Bargaining in the shadow of the law” is a famous phrase that by now has passed into negotiators’ and particularly lawyers’ subconscious. Yet as the backdrop for setting norms and expectations in negotiation, case law has been largely supplanted in recent years by a plethora of standardized, unilateral contracts which propel anyone with a subsequent grievance toward a private, confidential arbitration proceeding—and increasingly bar such individual parties not only from airing their concerns in court, but from joining with others similarly situated in a class action. The result has profound consequences for many who are trying to negotiate redress for all sorts of contract violations. This chapter should be read in conjunction with Miller & Dingwall on Dispute Domains.
51. Scripts: What to Do when Big Bad Companies Won't Negotiate
Carrie Menkel-Meadow and Robert Dingwall
The authors started with a “natural experiment”, involving a canceled flight and the resulting competition for the last seat on the last remaining plane out: in the real world, which negotiator gets that seat? Years of further study have combined with years of further sad experience, in which the authors increasingly found themselves grappling with customer service agents with routinized training and scripts for how to deal with dissatisfied customers, in one industry after another. Here, they survey the state of play across a wide range of environments which have now adopted such playbooks—and provide suggestions for how you can play in turn, with ingenious and effective responses.
Section IX authors:
Cynthia Alkon is the Associate Dean for Academic Affairs and a Professor of Law at Texas A&M University School of Law. Prior to joining academia, Professor Alkon was a Deputy Public Defender with the Los Angeles County Public Defender’s Office. Professor Alkon also spent over seven years working in Eastern Europe and the former Soviet Union providing rule of law development assistance, primarily for criminal justice reform. Professor Alkon’s scholarship focuses on plea bargaining, comparative criminal procedure, and rule of law development assistance efforts.
Robert Dingwall is a consulting sociologist in private practice and part-time Professor of Sociology at Nottingham Trent University. He has wide international experience in teaching and research, particularly in the interdisciplinary study of law, medicine, science and technology. This has included extensive studies of mediation, particularly in family disputes, and civil justice, particularly in relation to personal injury and medical
negligence. He is also interested in the application of ideas from conflict resolution to issues of public engagement and the interactions between science and society.
Jill I. Gross is Professor of Law at the Elisabeth Haub School of Law, Pace University, teaching dispute resolution, securities law, ethics and lawyering skills. She is an arbitrator for the AAA and FINRA Dispute Resolution, Chair of the AALS ADR Section, a member of the Securities Experts Roundtable, former Chair of the Securities ADR Committee of the ABA Section of Dispute Resolution, and former Chair of the Practising Law Institute's annual Securities Arbitration program. She has published prolifically in the area of securities arbitration and has been retained as an expert in securities arbitrations, litigations and enforcement proceedings.
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine and A.B. Chettle Professor of Law, Dispute Resolution and Civil Procedure at Georgetown University Law Center. She has published over 10 books and 200 articles in the fields of conflict and dispute resolution. She has received three honorary doctorates, and has taught and practiced mediation, restorative justice, negotiation, conflict resolution and ethics in 26 countries, and on all seven continents. She has been a conflict consultant to the World Bank, UN, International Red Cross and the U.S. Federal Judicial Center, as well as to many court systems and public and private organizations.
Gale Miller is Emeritus Professor of Sociology, Department of Social and Cultural Sciences, Marquette University. His research has focused on how human troubles are managed in human service institutions, particularly solution-focused brief therapy. His current research deals with families supporting loved ones imprisoned for sex offenses.
I. William Zartman is Jacob Blaustein Distinguished Professor of International Organization and Conflict Resolution (Emeritus) at the School of Advanced International Studies of The Johns Hopkins University. He is author of The Practical Negotiator (Yale 1982), Ripe for Resolution (Oxford 1989), Preventing Deadly Conflict (Polity 2015), and Cowardly Lions (Rienner 2005), and editor of numerous works, including Escalation and Negotiation in International Conflicts (Cambridge 2005), Peace vs Justice (Rowman and Littlefield 2005), Peacemaking in International Conflict (USIP 1993; 2006), Arab Spring: Negotiating in the Shadow of the Intifadat (University of Georgia Press 2015) and How Negotiation Ends: Behavior in the Endgame (Cambridge 2016). He is a member of the Processes of International Negotiation (PIN) Group of the Clingendael Institute for International Relations in The Hague, Netherlands.
Cynthia Alkon is the Associate Dean for Academic Affairs and a Professor of Law at Texas A&M University School of Law. Prior to joining academia, Professor Alkon was a Deputy Public Defender with the Los Angeles County Public Defender’s Office. Professor Alkon also spent over seven years working in Eastern Europe and the former Soviet Union providing rule of law development assistance, primarily for criminal justice reform. Professor Alkon’s scholarship focuses on plea bargaining, comparative criminal procedure, and rule of law development assistance efforts.
Robert Dingwall is a consulting sociologist in private practice and part-time Professor of Sociology at Nottingham Trent University. He has wide international experience in teaching and research, particularly in the interdisciplinary study of law, medicine, science and technology. This has included extensive studies of mediation, particularly in family disputes, and civil justice, particularly in relation to personal injury and medical
negligence. He is also interested in the application of ideas from conflict resolution to issues of public engagement and the interactions between science and society.
Jill I. Gross is Professor of Law at the Elisabeth Haub School of Law, Pace University, teaching dispute resolution, securities law, ethics and lawyering skills. She is an arbitrator for the AAA and FINRA Dispute Resolution, Chair of the AALS ADR Section, a member of the Securities Experts Roundtable, former Chair of the Securities ADR Committee of the ABA Section of Dispute Resolution, and former Chair of the Practising Law Institute's annual Securities Arbitration program. She has published prolifically in the area of securities arbitration and has been retained as an expert in securities arbitrations, litigations and enforcement proceedings.
Carrie Menkel-Meadow is Chancellor’s Professor of Law and Political Science, University of California, Irvine and A.B. Chettle Professor of Law, Dispute Resolution and Civil Procedure at Georgetown University Law Center. She has published over 10 books and 200 articles in the fields of conflict and dispute resolution. She has received three honorary doctorates, and has taught and practiced mediation, restorative justice, negotiation, conflict resolution and ethics in 26 countries, and on all seven continents. She has been a conflict consultant to the World Bank, UN, International Red Cross and the U.S. Federal Judicial Center, as well as to many court systems and public and private organizations.
Gale Miller is Emeritus Professor of Sociology, Department of Social and Cultural Sciences, Marquette University. His research has focused on how human troubles are managed in human service institutions, particularly solution-focused brief therapy. His current research deals with families supporting loved ones imprisoned for sex offenses.
I. William Zartman is Jacob Blaustein Distinguished Professor of International Organization and Conflict Resolution (Emeritus) at the School of Advanced International Studies of The Johns Hopkins University. He is author of The Practical Negotiator (Yale 1982), Ripe for Resolution (Oxford 1989), Preventing Deadly Conflict (Polity 2015), and Cowardly Lions (Rienner 2005), and editor of numerous works, including Escalation and Negotiation in International Conflicts (Cambridge 2005), Peace vs Justice (Rowman and Littlefield 2005), Peacemaking in International Conflict (USIP 1993; 2006), Arab Spring: Negotiating in the Shadow of the Intifadat (University of Georgia Press 2015) and How Negotiation Ends: Behavior in the Endgame (Cambridge 2016). He is a member of the Processes of International Negotiation (PIN) Group of the Clingendael Institute for International Relations in The Hague, Netherlands.