Lawyer Negotiation: Theory, Practice, and Law PDF
Preview Lawyer Negotiation: Theory, Practice, and Law
Lawyer Negotiation 2 EDITORIAL ADVISORS Erwin Chemerinsky Dean and Distinguished Professor of Law Raymond Pryke Professor of First Amendment Law University of California, Irvine, School of Law Richard A. Epstein Laurence A. Tisch Professor of Law New York University School of Law Peter and Kirsten Bedford Senior Fellow The Hoover Institution Senior Lecturer in Law The University of Chicago Ronald J. Gilson Charles J. Meyers Professor of Law and Business Stanford University Marc and Eva Stern Professor of Law and Business Columbia Law School James E. Krier Earl Warren DeLano Professor of Law The University of Michigan Law School Richard K. Neumann, Jr. Professor of Law Maurice A. Deane School of Law at Hofstra University Robert H. Sitkoff John L. Gray Professor of Law Harvard Law School David Alan Sklansky Stanley Morrison Professor of Law, Stanford Law School Faculty Co-Director, Stanford Criminal Justice Center 3 Lawyer Negotiation Theory, Practice, and Law Third Edition Jay Folberg Professor and Dean Emeritus University of San Francisco School of Law Dwight Golann Professor and Director, Center for Representation in Dispute Resolution Suffolk University Law School 4 Copyright © 2016 CCH Incorporated. Published by Wolters Kluwer in New York. Wolters Kluwer Legal & Regulatory US serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products. (www.WKLegaledu.com) No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or utilized by any information storage or retrieval system, without written permission from the publisher. For information about permissions or to request permissions online, visit us at www.WKLegaledu.com, or a written request may be faxed to our permissions department at 212-771-0803. To contact Customer Service, e-mail [email protected], call 1-800-234-1660, fax 1-800-901-9075, or mail correspondence to: Wolters Kluwer Attn: Order Department PO Box 990 Frederick, MD 21705 Library of Congress Cataloging-in-Publication Data Names: Folberg, Jay, 1941- author. | Golann, Dwight, author. Title: Lawyer negotiation : theory, practice, and law / Jay Folberg, Dwight Golann. Description: Third edition. | New York : Wolters Kluwer, [2016] | Includes index. Identifiers: LCCN 2015044567 | eISBN: 978-1-4548-7601-4 Subjects: LCSH: Negotiation — United States. | Dispute resolution (Law) — United States. Classification: LCC KF9084 .F65 2016 | DDC 347.73/9--dc23 LC record available at http://lccn.loc.gov/2015044567 5 About Wolters Kluwer Legal & Regulatory US Wolters Kluwer Legal & Regulatory US delivers expert content and solutions in the areas of law, corporate compliance, health compliance, reimbursement, and legal education. Its practical solutions help customers successfully navigate the demands of a changing environment to drive their daily activities, enhance decision quality and inspire confident outcomes. Serving customers worldwide, its legal and regulatory portfolio includes products under the Aspen Publishers, CCH Incorporated, Kluwer Law International, ftwilliam.com and MediRegs names. They are regarded as exceptional and trusted resources for general legal and practice-specific knowledge, compliance and risk management, dynamic workflow solutions, and expert commentary. 6 To my father, Lew Folberg, the pawn broker who taught me the art of negotiation — J.F. To my father, Herbert Goldberg, whose inventiveness in other fields has inspired my work — D.G. 7 SUMMARY OF CONTENTS Contents Preface Acknowledgments Chapter 1: Negotiation and Conflict Chapter 2: Perception, Fairness, Psychological Traps, and Emotions Chapter 3: Competitive and Cooperative Negotiation Chapter 4: Selecting a Negotiation Style and Combining Approaches Chapter 5: Negotiation Step by Step — The Beginning Chapter 6: Negotiation Step by Step — The Middle Chapter 7: Negotiation Step by Step — The End Chapter 8: Telephone and Cyber Negotiation Chapter 9: Gender, Culture, and Race Chapter 10: Negotiation Ethics Chapter 11: The Law of Negotiation Chapter 12: Obstacles to Agreement and Mediation Assistance Chapter 13: Negotiating in a Mediation Chapter 14: Negotiation Limits and Settlement Policy Appendix References Table of Cases Index 8 CONTENTS Preface Acknowledgments CHAPTER 1 NEGOTIATION AND CONFLICT A. Introduction to Negotiation B. Conflict C. Ripeness D. The Triangle of Conflict and Negotiation Negotiation as a Healing Process — Gerald R. Williams CHAPTER 2 PERCEPTION, FAIRNESS, PSYCHOLOGICAL TRAPS, AND EMOTIONS A. The Role of Perceptions Rashoman Effect The Conflict Helix — R.J. Rummel B. Heuristics — Thinking Fast and Slow The Myth of Professional Objectivity C. The Impact of Fairness The Home-Run Ball Catch Perceptions of Fairness in Negotiation — Nancy A. Welsh D. The Role of Emotions and Emotional Intelligence The Emotionally Attentive Lawyer: Balancing the Rule of Law — Randall Kiser Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human Relationships in the Practice of Law — Joshua D. Rosenberg Neuroscience and Negotiation CHAPTER 3 COMPETITIVE AND COOPERATIVE NEGOTIATION Microsoft v. Stac A. Competitive/Adversarial Approach 1. Competitive Approach A Primer on Competitive Bargaining — Gary Goodpaster 9 2. Adversarial Approach Note: Responses to Competitive Hardball and Difficult People B. Cooperative/Problem-Solving Approach 1. Cooperative Approach Note: Positions vs. Interests 2. Problem-Solving Approach Toward Another View of Legal Negotiation: The Structure of Problem Solving — Carrie Menkel- Meadow Pros and Cons of “Getting to YES” — James J. White; and Comment on White’s Review — Roger Fisher C. Creating Value and Claiming Value — The Negotiator’s Dilemma Problem: Jack Sprat Differences Can Create Joint Gains CHAPTER 4 SELECTING A NEGOTIATION STYLE AND COMBINING APPROACHES A. Effectiveness and Style The Inherent Tension Between Value Creation and Value Claiming During Bargaining — Charles B. Craver B. Negotiating Within Your Comfort Zone ‘‘I See a Pattern Here and the Pattern Is You’’: Personality and Dispute Resolution — Sheila Heen & John Richardson The Limits of Integrative Bargaining — Gerald B. Wetlaufer C. Cooperation vs. Competitiveness — Who Decides? Ends vs. Means CHAPTER 5 NEGOTIATION STEP BY STEP — THE BEGINNING A. Negotiation Stages and Approaches B. Getting Ready to Negotiate 1. Preparation A Positive Theory of Legal Negotiation — Russell Korobkin 2. Setting Goals Bargaining for Advantage: Negotiation Strategies for Reasonable People — G. Richard Shell 3. Negotiation Preparation Checklist Note: Web and Computer-Assisted Preparation C. Initial Interaction 1. Trust Note: The Handshake that Shook the Western Hemisphere Note: Rapport and Reciprocity 10
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