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Toward another view of legal negotiation: The structure of problem solving

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... In situations that allow creating value beyond what is immediately obvious, negotiators systematically and predictably fail to optimize by agreeing to lose-lose features (Thompson & Hrebec, 1996), leaving value on the table and reaching impasse (Raiffa, 1982;Thompson, 2005). The quality of outcomes has been considered a function of negotiators' social motivation and resistance to yielding (Druckman, 1994;Pruitt & Rubin, 1986), their social and epistemic motivation (De Dreu, Beersma, Stroebe, & Euwema, 2006;De Dreu, Koole, & Steinel, 2000;Van Kleef, De Dreu, & Manstead, 2004), their mental models or orientations (Bazerman, Curhan, Moore, & Valley, 2000;Menkel-Meadow, 1983;Van Boven & Thompson, 2003) and their mixed motives (Lax & Sebenius, 1986;Mnookin, 2000;Murnighan, Babcock, Thompson, & Pillutla, 1999). ...
... While negotiations normally carry the potential to create value beyond what is immediately obvious (Deutsch, 1973;Pruitt & Rubin, 1986;Walton & McKersie, 1965), negotiators assume the contrary. The critical bias identified by the decision perspective research is that the value in negotiation is fixed (the 'fixed-pie' or 'zero-sum' assumption), which leads the parties to focus on the competitive distributive aspects of the interaction and leave value creation out of focus (see e.g., Bazerman, Magliozzi, & Neale, 1985;Bazerman & Neale, 1986, 1991De Dreu et al., 2000;Menkel-Meadow, 1983;O'Connor & Adams, 1999;Pinkley et al., 1995;Thompson, 1991). A related bias is that negotiators' interests cannot be compatible (i.e., if I want something, the counterparty will oppose that) and causes lose-lose agreements where the parties both prefer one option, but settle for another (Thompson & Hrebec, 1996). ...
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Suboptimal outcomes in negotiation have been associated with the implicit fixed-pie bias. The ability to correct this bias might be a critical capacity in negotiation and is often at the core of negotiation training. Cognitive reflection – an individual thinking disposition enabling people to suppress and override automatic responses – predicts performance in a variety of individual heuristics and biases tasks. A study (N = 262) investigated whether cognitive reflection predicts negotiation outcomes and whether improvements associated with training are mediated by training-enhanced cognitive reflection of the participants. The results show that cognitive reflection predicts both an individual negotiator’s gain and all aspects of joint gain. Training enhances performance and is partially mediated by increased cognitive reflection. The findings support the proposition that cognitive reflection is an independent thinking disposition that underpins resistance to bias and improves outcomes in negotiation settings.
Although American scholars sometimes consider European legal scholarship as old-fashioned and inward-looking and Europeans often perceive American legal scholarship as amateur social science, both traditions share a joint challenge. If legal scholarship becomes too much separated from practice, legal scholars will ultimately make themselves superfluous. If legal scholars, on the other hand, cannot explain to other disciplines what is academic about their research, which methodologies are typical, and what separates proper research from mediocre or poor research, they will probably end up in a similar situation. Therefore we need a debate on what unites legal academics on both sides of the Atlantic. Should legal scholarship aspire to the status of a science and gradually adopt more and more of the methods, (quality) standards, and practices of other (social) sciences? What sort of methods do we need to study law in its social context and how should legal scholarship deal with the challenges posed by globalization?
WIKA WG KSO is a joint company between PT. WIKA and PT. WEGE, which is engaged in the construction sector, is a temporary limited liability company that was deliberately built to complete the TNI-AD RUMDIS project which is located in 36 areas in Indonesia. One of the project areas is in Ciracas, East Jakarta, which was chosen by the author as the research subject. The location of the research project is in a residential area, so the construction process is carried out in the same place as the community’s activity and mobility area, which in turn raises several issues and criticisms. The purpose of this research is to analyze the problem solving conducted by PT. WIKA WG KSO, the process taken, until the results obtained from solving problems that have been carried out, as well as to identify alternative methods that can be carried out by PT. WIKA WG KSO to get the best results. The author proposes the interactive negotiation method as a recommendation to achieve a win-win solution that is fair for both parties. Based on the research that has been done, the authors conclude that there are several methods of integrative negotiation that can be carried out by PT. WIKA WG KSO to achieve a fair and profitable end result for PT. WIKA WG KSO and local residents affected by the TNI-AD RUMDIS development project.
Mediation, a popular mechanism for resolving disputes in Chinese society, is believed to be an important process for realising the official goal of a harmonious society in China. The widespread acceptance and adoption of mediation in daily life justifies a serious consideration of the “normalising” of mediation as a discipline in legal studies.
Universities face a dilemma in determining how to create fair, consistent, and reliable processes that respect the rights of both alleged perpetrators and victims and encourage people to bring complaints forward. Using the literature on non‐law forms of ordering and neo‐institutional theory, this article examines university Ombuds and Title IX Coordinators and their handling of sexual misconduct disputes. Primary data collection included a review of 1200 documents and interviews with 14 Ombuds and 13 Title IX Coordinators from 22 large institutions of higher education between 2011 and 2014. This study concludes that Ombuds and Title IX Coordinators, despite being designed in sharply contrasting ways, converge (but not fully) toward a hybrid of formality and informality. This paper examines Title IX to understand what drives convergence behavior and to analyze how the recent changes in the law may alter the process of convergence. As Title IX law continues to develop, the theory of procedural convergence has important implications for the creation of non‐law dispute mechanisms and the balance between individual rights and the organizational development of legal norms.
The research is relevant since the success of mediation largely depends on the model of the process chosen by the mediator at the stage of preparation. This article aims to study different models of mediation, such as facilitative mediation, evaluative, transformative, e‐mediation, mixed mediation, mediation‐arbitration, narrative mediation, “Shuttle” mediation, court‐mandated mediation, and a lot of others. The key method of research on this issue is the method of analysis, which was used to characterize and determine the characteristics of different models of mediation, and to classify these models according to different criteria. The results showed that among all the studied models, facilitative mediation is the most popular in use. It focuses on the interests of the parties, reflecting the main goal of this procedure, which is to achieve a solution that meets the interests of all parties, and mixed mediation, when the mediator combines different mediation models, using the benefits of each. The study concluded that the mediator should take into account the content of the dispute, the interests of the parties, and the relationship between them, and choose the style of the process that best suits the specific situation. The materials of the article can be used to develop legislation regulating mediation in Ukraine. The results of this study can be used by scientists to conduct theoretical and practical research in the field of alternative dispute resolution, as well as mediators to increase the level of knowledge in the preparation for mediation.
Research shows that strategic dispute resolution and early intervention reduce direct and indirect costs of conflicts. Minimal costs are involved in preventing and de-escalating disputes, compared with the costs of arbitration and litigation, for example. In this context, the traditional view of contracts as legal documents or reactive enforcement mechanisms is too narrow. Contracts can be used proactively, ex ante, too, enhancing the parties’ chances of success and preventing unnecessary problems. In Europe, this is part of what is known as Proactive Law; in the US, Preventive Law. On both sides of the Atlantic, it can also be framed as practicing proactive contracting or proactive contract design. Well-designed contracting processes and documents can prevent misaligned expectations and disappointments so that unnecessary disputes can be avoided. Early intervention methods of dispute resolution, such as mediation, can be used to de-escalate the dispute and promote cooperation. Along with other crucial elements, contracts can provide pre-agreed procedures and resolution mechanisms if changes, delays, or disturbances occur or a conflict situation arises. Building on our previous work on civil and commercial mediation and a managerial-legal view on contracts and their design we illustrate, with examples, how proactive contract design, combined with early intervention procedures and monitoring systems as well as post-award management processes can be used to better deal with the commercial, legal and human elements of a dispute. With a focus on commercial business-to-business contracts and related conflicts we explore how design methods can be used to address the root causes of legal disputes and to operationalize an effective dispute prevention and resolution system.
Do lawyer fees influence lawyer behavior? The impact of lawyer fees on lawyer behavior has been discussed theoretically and anecdotally, mostly from an aspect of economic incentives. Yet little research has empirically examined this issue. This article aims to add one empirical study. I conducted a vignette experiment with 206 Japanese divorce lawyers. Scenarios of divorce disputes involving certain ethical dilemmas were used to measure partisanship. The description of fee arrangement in the scenarios varied to compare three conditions: (a) no specific description of lawyer fee (the control condition), (b) JPY 300 thousand retainer with additional JPY 300 thousand contingency (a typical fee arrangement in Japan), and (c) JPY 450 thousand retainer with no contingency (a lump-sum prepaid arrangement). I found that partisanship of lawyers became higher in conditions with fee descriptions, when they were conscious of (the existence of) the fee. This phenomenon was observed in condition (c) of a lump-sum prepaid fee arrangement as well as in condition (b) of a typical fee arrangement combining a retainer and contingency. The findings indicate that the reciprocity norm, rather than economic incentives, may have a power on the relationship between lawyer fees and lawyer behavior.
LEGAL NEGOTIATION AND SETTLEMENT, supra note 2, at 15-58. 287. See supra note Ill
  • See G Williams
See G. WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT, supra note 2, at 15-58. 287. See supra note Ill. [Vol. 31:754
  • R Axelrod