What To Do Before, During And After IP Mediation
Law360, New York (May 15, 2013, 12:46 PM ET) -- How intellectual property lawsuits get resolved can be critically important to the parties to those lawsuits. The right to sell an allegedly infringing product or service; the price for that product or ...
Do you ever feel ambushed by strong emotions?
To guard against acting irrationally or in ways that can harm you, authors of Beyond Reason: Using Emotions As You Negotiate Roger Fisher and Daniel Shapiro advise you to take your emotional temperature during a negotiation. Specifically, try to gauge whether your emotions are manageable, starting to heat up, or threatening to boil over.
Here are some suggestions for lowering your emotional temperature:
Develop an Emergency Plan
Give yourself an ‘out’ – a break that allows you to take a walk to cool down, to call a friend or colleague for reinforcement, or remind yourself of your BATNA (best alternative to a negotiated agreement).
Shift the Focus
Ask questions that you time, bring new information, and test your assumptions. (See also: In Deal Making, Broaden Your Focus)
Diagnose Your Ailment
What core concerns of yours are not being met? Are you hurt because you feel unappreciated or dismissed? Once you understand why you’re upset, you’ll be better able to signal what you need. (See also: Emotion and Judgment)
When you download the New Conflict Management: Effective Conflict Resolution Strategies to Avoid Litigation you will learn how wise negotiators extract unexpected value using an indirect approach to conflict management.
Mediation: an alternative to litigation
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On March 2, 2013, the Harvard Negotiation Law Review held their 2013 Symposium, entitled “Ideas and Impact: Roger Fisher’s Legacy.” This event celebrated Professor Fisher, co-founder of the Harvard Negotiation Project and the Program on Negotiation. Professor Fisher passed away last summer.
During the day-long event, distinguished panelists explored current trends and opportunities for aspiring scholars and practitioners in the alternative dispute resolution field through the perspective of Professor Fisher’s work.
Video of each panel is available on the HNLR website here: http://www.hnlr.org/symposium2013/ and includes the following:
Panel 1: “The Little-Known Professor Fisher: Path to a Life in Alternative Dispute Resolution”
Panelists: Amy J. Cohen, Andrea Schneider, Daniel Shapiro, William Ury
Moderator: Michael Wheeler
Panel 2: “The Impact of Roger Fisher’s Work at Home”
Panelists: Jared R. Curhan, David A. Hoffman, Grande Lum, Andrew S. Tulumello
Moderator: Michael Moffitt
Panel 3: “The Impact of Roger Fisher’s Work Abroad”
Panelists: Diana Chigas, Alain Lempereur, Jamil Mahuad, Bruce Patton
Moderator: Eileen F. Babbitt
Panel 4: “The Future of Dispute Resolution”
Panelists: Sheila Heen, Carrie J. Menkel-Meadow, Robert H. Mnookin, Robert Ricigliano
Moderator: Robert C. Bordone
The Negotiation Journal also published a group of articles celebrating Professor Fisher’s legacy, which are available on the Wiley website here: http://onlinelibrary.wiley.com/doi/10.1111/nejo.2013.29.issue-2/issuetoc.
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What to do when you’ve done everything right, but you still don’t have an agreement.
1. Diagnose the Barrier
When you’ve made progress on certain issues but remain stymied on others, it’s time to take a hard look at what’s standing between you and a mutually acceptable deal. Professor Robert Mnookin of Harvard Law School and his colleagues at Stanford University have created a catalog of common barriers to agreement, including strategic behavior, reactive devaluation, and authority issues.
If you think strategic behavior – the unwillingness of one or both sides to make a best offer – may be the problem, enlist a trusted, unbiased third-party for help. The negotiators can then disclose their respective bottom lines privately to the neutral, who will tell them if there’s an overlap. If so, the negotiators should be able to hammer out a deal quickly within the zone of possible agreement (ZOPA).
If not, it may be wise to abandon talks and pursue other alternatives.
Psychological factors can block agreement, too. Professor Lee Ross of Stanford University demonstrated the all-too-human tendency to reactively devalue what other people offer us.
“If that were truly important to them. they wouldn’t have made the concession.” We tell ourselves.
We need to avoid that trap in our own thinking and be careful not to trigger that reaction from others. Rather than trying to wrap things up by putting a reasonable number on the table, for instance, wait for the other side to make a specific request. In this manner, you may increase the perceived value of your concession – and your counterpart’s satisfaction.
Sometimes a tag-team approach is needed to reach closure. The first cohort of negotiators may settle some important issues but run out of gas when it comes to others. A fresh team may bring a new perspective without the burden of personality problems that their predecessors developed. Changing the lineup may be especially useful if early negotiators have limited authority. This is common practice in diplomatic negotiations; foreign-service specialists often do much of the groundwork before heads of state meet to resolve any remaining issues.
2. Use the Clock
Negotiations expand to fill the time available. We may not like to make important decisions under the gun, but deadlines can provide a healthy incentive to come to agreement. It’s no accident that lawsuits settle on the courthouse steps and that strikes often are averted at the eleventh hour. Until that point, the daily costs of protracted negotiation may not seem high (though, clearly, they mount over time).
Only when the judge is about to be seated or the contract is due to expire are people jolted out of the relative comfort of the status quo. If you anticipate these moments, recognize your priorities, and keep channels of communication clear, you’ll be able to move quickly and wisely when you have to.
To avoid getting bogged down in never-ending talks, it pays to impose a deadline at the outset of negotiation. You also can put a fuse on the proposals you make, though exploding offers can backfire if the other party resents being put under artificial pressure.
3. Count Your Change
Even if you’ve done everything right, you have to be alert for gambits and tricks as the negotiation winds down.
A classic bargaining tactic among lawyers advises, “After agreement has been reached, have your client reject it and raise his demands.” It’s a common gambit for car salespeople, too, as they return from conferring with the manager. The news is never good: “You’ve got to offer $1,000 more – but he’ll toss in the floor mats for free.”
Shame on those who resort to such tired old ploys. Shame on you, too, if you’re not ready for them.
When you reach agreement, confirm that all the key provisions have been covered so there will be no surprises. Even after you’ve gotten a sincere handshake, your counterpart may come back with further demands if she is having a tough time selling the deal internally. (You’ll sometimes be in that position yourself.)
From the outside, of course, it’s impossible to know when you’re being taken for a ride and when the need for revisions is legitimate. How the negotiation has gone up until that point may offer an important clue.
Either way, however, you should be leery about making any unreciprocated concessions. If your counterpart asks for new terms, even if you can afford them, you should get a favorable adjustment in return. Otherwise, you’re simply encouraging further requests.
4. Sign Here
Most important deals require a written contract. Whatever you’ve gained through artful negotiation will go down the drain if the understanding you reached is poorly reflected in formal documents.
The technical side of executing an agreement isn’t glamorous, but it’s where many battles are won or lost. Even if you’re weary, resist the temptation to let the other side “write it all up.”
It’s smarter to have your own lawyers and specialists get the language right than to seek their help later in rewriting a draft that the other side has mangled. Because you have control over your own lawyers, you can tell what risks you’re willing to take and where you need protection.
Your attorneys must known the limits of their responsibility, of course. While it’s their job to protect your rights and identify potential trouble spots, it ultimately falls to you to determine which risks you’re willing to assume. After all, in business (as in life) there are few certainties. As a practical matter, it may be sensible to leave some items unresolved and others ambiguous.
For example, if you have retained a corporate trainer to present a program to your company, you will likely want to include a clause for rescheduling if a conflict arises. If that seems unlikely, it may be sufficient to stipulate that the new date will be at a “mutually agreeable time,” rather than creating cumbersome procedures and policies that you’ll never need.
Instead of getting bogged down arguing tedious technical points, consider addressing them globally. A straight-forward dispute resolution clause, crafted while everyone is enthusiastic about the deal, can reduce the cost of unexpected problems and keep you out of court.
At the end of negotiation, boiler-plate clauses governing renewal options and the like may not seem like dealmakers or deal breakers, but they determine who is holding the cards when it comes time to renew the agreement. For this reason, take special care to get the language of exit clauses right so that you’ll be in a good position to renegotiate down the road.
Parties often are preoccupied with immediate dollars and cents when they execute a deal, but, in the long-term, the option to extend or terminate a deal may have much more financial value.
Finally, be ultra-careful about casually signing a “memorandum of understanding” or an “agreement to purchase.” These documents may entail real commitments and limit your ability to win any further benefits, ending the negotiation before you even realized it had begun.
5. Let Them Brag
You may not have liked your counterpart much at the outset, and after marathon haggling sessions, you may like him even less. It’s hard to be civil in such situations, yet grace is more important at the finish line.
To get a deal ratified, you may have to make your counterpart look good to his constituents. This is not just a question of virtue. If the other side loses face, he may be tempted to retaliate and spurn a deal that, by all rights, he should accept. If someone’s agreement comes grudgingly, getting him to deliver on his promises may be like pulling teeth.
To make the other party look good, you may need to orchestrate the concluding moves in the negotiation. In collective bargaining, for example, the management often prefers it when the union makes an offer that the company can accept, rather than vice versa. (Appearing weak is less of a concern for management than it is for the union’s elected agents.) Union officials can then say to their membership, “We got the company to accept our proposal,” rather than, “Here’s what we finally accepted.”
William Ury, author of Getting Past No: Negotiating Your Way from Confrontation to Cooperation, calls this strategy “building a golden bridge.” It involves allowing the other side to make a graceful exit – and practicing the diplomatic art of letting others have your way.
Discover step-by-step techniques for avoiding common business negotiation pitfalls when you download a FREE copy of our Business Negotiation Skills: 5 Common Business Negotiation Mistakes special report from Harvard Law School.
Related Article: In Deal Making, Broaden Your Focus