Negotiation Law Blog

Let's take a workplace teaching moment from the Obama-McCrystal dust-up as provided to us by the New Yorker in this week's Talk of the Town piece, Team Effort.  In reporting the dysfunction on Team Afghanistan (McChrystal vs. American Ambassador Karl Eikenberry with President Karzai as a manipulative by-stander) the NY'ers George Packer recalls a description of governmental decision-making provided by Obama's special representative for the region, Richard Holbrooke, last year:

People sit in a room, they don't air their real differences, a false and sloppy consensus papers over those underlying differences, and they go back to their offices and continue to work at cross-purposes, even actively undermining each other.

If that defines your workplace, it's time to have some difficult conversations in which a genuine consensus is negotiated among those in power, all the while remembering that everyone is afraid of the scary HR lady down the hallway.  As the recession appears to deepen and run American business off the rails, its time we get real, get smart, get efficient and get right with one another.  If not, next thing you know, you'll be learning to spell Q-U-A-G-M-I-R-E yourself, wondering how the heck such a profitable enterprise could meet such a messy and costly end.

Here are some resources:

Difficult Workplace Conversations by Conflict Zen blogger Tammy Lenski - an old post but a timeless one.

Bursting the Bubble, Cultivating Dissent in the Workplace by mediator and negotiation trainer and consultant Diane Levin of The Mediation Channel.

Resolving Conflicts at Work by Ken Cloke and Joan Goldsmith.

The Martial Art of Difficult Conversations by Peter (why I returned my iPad) Bregman at the Harvard Business Review

Toward a Theory of Managing Organizational Conflict by M Afzalur Rahim (for the academically-minded)

And, last but not least, the google book site for the Art of War

And remember . . . . never ever ever get comfortable with a reporter around.

Volcker Rule under Attack as Lawmakers Seek Loophole:  full analysis from Bloomberg at the link; double-speak excerpt below.

“There’s pressure from both sides to toughen and to soften the Volcker rule, and politics is the art of compromise,” said Lawrence Kaplan, an attorney at Paul Hastings Janofsky & Walker LLP in Washington. “Running a hedge fund wasn’t the problem, and this way they’re saying all of it wasn’t bad, you just can’t use too much of your capital on it. Politics is the art of saying ‘we made it tougher’ without making it really tough.”

Thanks to the dynamic and brilliant Judy Martin for hipping me to this.  I think I need investment guru Whitney Johnson to explain it to me.

Ladies????  Or anyone else who'd care to explain the Volcker Bill to me, please chime in!

In  Workplace Negotiating Secrets From Bethenny's Shrink over at Forbes.com, Xavier Amador, the therapist on Bethany Getting Married? gives his "secrets" for "winning" workplace arguments.  What Amador suggests (below and at the link) is really just collaborative interest-based negotiation, but his catchy acronym - LEAP - is a good one to remember for all negotiations, whether you're brokering peace in the Middle East or getting your guy to put the toilet seat down.  If you read the article, and I highly recommend doing so,  you'll see that no one is "winning" any "argument."  Rather, people are finding ways to accomodate all of their needs simultaneously.

Asher Hawkins over at Forbes On the Docket legal blog foresees trouble for class action plaintiffs in the Supreme Court's Latest Arbitration-Friendly Ruling.  As Hawkins explains:

A minor Supreme Court victory this morning in an employment-related arbitration case has left the pro-arbitration camp hopeful that the justices will see things their way in a hotly anticipated consumer-related legal battle the court will hear next term.

This morning's ruling in Rent-A-Center West Inc. v. Jackson saw the court's conservative wing rule in favor of Rent-A-Center's push to have an arbitrator, and not a court, rule on the enforceability of an arbitration agreement between the company and an employee who'd filed an employment discrimination suit. In so holding, the five-justice majority reinstated a ruling from a Nevada federal court judge that had been reversed by the U.S. Court of Appeals for the Ninth Circuit.

Continue reading the Forbes' post here.

Hawkins and Rent-A-Center's attorney Carter Phillips of Sidley Austin may be reading the tea leaves correctly, but the Court's hyper-technical decision-dodging suggests the absence of a plurality on the real issue presented - whether the Court or the arbitrator should be making the decision whether the arbitration agreement is unconscionable or not.

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Los Angeles has large orthodox and ultra-orthodox Jewish communities.   I have, on more than one occasion, been introduced by mediation clients to the Jewish justice system - the Bet Din.  I have mediated business disputes that have already been to the Bet Din and those that were destined to go there.

It is not my intention here to describe the Jewish laws requiring (or suggesting) resolution before a Bet Din, only to attach some resources here and link to others.

A "layman's guide" to Jewish Law (.pdf) (recommends mediation as one way of resolving a disputes)

The story of the stolen Torahs and the Bet Din's purported practice of "splitting the baby" below, including a blog post indicating that a Los Angeles Superior Court had been asked to confirm a Bet Din decision as an enforceable judgment.

California Civil Court Asked to Confirm Bet Din's Ruling on Torah Scrolls

Judge Rules against Rabbi's Widow in Torah Case reporting that the Los Angeles Superior Court has thrown out a religious court's decision to award four disputed Torahs to an Orthodox rabbi's widow who claimed that the scrolls had been stolen by her late husband's assistant.

Rabbi's Widow, LA Shul Fight Over Torah Scrolls (containing the reference to "splitting the baby")

Additional Resources

Website for a Los Angeles Din Torah Counselor.

Traditional Jewish Arbitration Panels Find New Converts

For all those past and present Honors Moot Court Board Members out there, an article on the North American High School Moot Beit Din

The London Beth Din for my British readers.

Please feel free to add to these resources.

Old.  But.  Priceless.

Thanks to Bob Ambrogi for the best law blog post of the year - Getting Divorced?  There are Apps for That.  Bob's also among the best lede crafters in the blawg business. Here it is:

If you’re married to your iPhone but not so sure about your spouse, then DivorceApps.com may have just what you need. It is developing a series of iPhone apps designed for people who are considering or in the process of divorce.

Read the full post here.

And hey! Ken Adams!  How about a contract drafting app?

Read Gawande's Checklist Manifesto!  Rinse.  Repeat.  App your legal specialty!

On Friday, a proposed Facilitated Mortgage Workout Program quietly passed from the California legislative scene after its defeat the day before, three votes shy of passage. Although the bill's proponents thereafter won a short stay of execution, the law making body's failure to reconsider the bill by Friday's deadline made it dead on arrival.

Given the concerted opposition of the lending and banking industries, as well as by the national Chamber of Commerce, it is surprising that the margin of the defeat was so narrow, suggesting that many in this (and other state legislatures) are continuing to feel considerable  pressure from their constituents to take bolder action in response to the nationwide housing collapse -- a collapse that has been particularly severe in the Golden State after years of annual double-digit inflation in housing prices.

Continue reading here.

I'm lifting the entirety of Ken Adams' post The Connection Between Contract Drafting and Negotiation, along with the insightful comments to it.

The contract man!  Put his blog in your newsreader and pick up his Manual of Style for Contract Drafting today.  Today's post and comments follow.

I thought it worthwhile to scoop from the comments to my recent post on deal risk an exchange I had with Vickie Pynchon of the Settle It Now Negotiation Blog regarding the connection between drafting a contract and negotiating it.

Here’s the relevant part of Vickie’s comment:

I’ve been devising a negotiation class for transactional lawyers with a transactional attorney/negotiation professor in Northern California. I was surprised to hear him say that most transactional lawyers don’t possess negotiation skills—I always thought of them as the negotiation go-to guys. My new business partner says “no, they’re ‘write the deal up avoid risk’ guys.” That put transactional practice in an entirely different light. Do you think, Ken, that transactional attorneys would be better contract drafters if they were more involved in the negotiations leading to the deals they memorialize (or criticize)?

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UPDATE:  Something to keep in mind:

When Deepak Malhotra, co-author of the brilliant Negotiation Genius, taught business students at Northwestern’s Kellogg School of Management, he required each one to “go negotiate something in the real world” and write a report about it.  As Babcock and Laschever report in Women Don’t Ask,

• Of 45 students, 35 negotiated something for themselves and ten negotiated something for their employer;
• The average savings realized by students who negotiated on their own behalves was $2,200;
• The average savings realized by those who negotiated on behalf of their employers was a whopping $390,000;
• When asked what the most important negotiation tactic had been, the students said “choosing to negotiate at all.”

From Women Don't Ask.

There's still time to sign up for the roof-raising "She Negotiates" online negotiation course.

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