Negotiation: Processes for Problem Solving 3rd Edition by Carrie J Menkel-Meadow, ISBN-13: 978-1543801699

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Negotiation: Processes for Problem Solving 3rd Edition by Carrie J Menkel-Meadow, ISBN-13: 978-1543801699

[PDF eBook eTextbook]

• Publisher: ‎ Aspen Publishing; 3rd ed. edition (September 15, 2020)
• Language: ‎ English
• ‎624 pages
• ISBN-10: ‎ 1543801692
• ISBN-13: ‎ 978-1543801699

A distinguished team of leaders in the field of dispute resolution offers a thorough treatment of negotiation skills, ethics, and problem-solving techniques. Comprehensive and current, Negotiation: Processes for Problem Solving covers the theory, skills, ethical issues, and legal and policy analyses relevant to all key areas of negotiation practice. Carefully selected cases are supported by key readings, from critical articles and empirical studies to statutes and regulations. Negotiation: Processes for Problem Solving looks at the latest interdisciplinary approaches to negotiation, including new empirical studies examining on-line negotiation, social and cognitive psychology, gender, race, culture and negotiation, and multiple party negotiation. An introduction to facilitated negotiation (mediation and meeting facilitation) is also included. New research is distilled for use by law students and practicing lawyers. New and complex examples from international negotiation problems come from both private and public environments. The book also explores new forms of complex negotiation in international, multi-party and diverse settings and considers negotiators as problem-solving lawyers. The text is perfectly suited to free standing negotiation courses in American and foreign law schools. Problem boxes, set off in the book, make for easy classroom exercises and teaching.

New to the Third Edition:

• Online and other media forms of negotiation
• New articles from both research and practice books
• Shorter excerpts for distilled treatment of issues
• Comprehensive treatment of negotiation preparation, including client interviewing and counseling
• Analysis of choice of negotiation approaches to match particular contexts

Professors and students will benefit from:

• A thorough treatment of negotiation skills, ethics, and problem-solving techniques
• Theory and different frameworks for analyzing negotiation contexts
• Legal and policy analyses relevant to all key areas of negotiation practice
• Carefully selected cases and problem sets supported by key readings, from critical articles and empirical studies to statutes and regulations
• Latest interdisciplinary approaches to negotiation
• Negotiation research distilled for law students and practicing lawyers
• Deep discussion of negotiators as problem-solving lawyers
• Complex examples from international negotiation problems in both private and public environments
• New forms and facilitation of complex negotiation in international, multi-party, and diverse settings

Table of Contents:

Cover Page

Front Matter

Editorial Advisors

Title Page

Copyright Page

About Aspen Publishing

Dedication

Summary of Contents

Contents

Preface to Third Edition

Preface to Second Edition

Preface to First Edition

Acknowledgments

Part I. Concepts and Models of Negotiation

Chapter 1. Conflict Theory: Concepts of Conflict and Negotiation

A. Conflict Theory

Carrie Menkel-Meadow, Roots and Inspirations: A Brief History of the Foundations of Dispute Resolution

Carrie Menkel-Meadow, Conflict Theory

Problem 1-1

Thomas C. Schelling, The Strategy of Conflict

Mary Parker Follett, Constructive Conflict

Deborah Tannen, The Argument Culture: Moving from Debate to Dialogue

Carrie Menkel-Meadow, The Trouble with the Adversary System in a Postmodern, Multicultural World

Problem 1-2

Problem 1-3

B. Negotiation Theory

1. Concepts of Negotiation

Jonathan R. Cohen, Adversaries? Partners? How About Counterparts? On Metaphors in the Practice and Teaching of Negotiation and Dispute Resolution

Problem 1-4

Problem 1-5

Linda L. Putnam, Challenging the Assumptions of Traditional Approaches to Negotiation

Problem 1-6

Frank E.A. Sander & Jeffrey Z. Rubin, The Janus Quality of Negotiation: Dealmaking and Dispute Settlement

Michael L. Moffitt, Disputes as Opportunities to Create Value

Problem 1-7

2. Descriptions of the Negotiation Process

Gerald Williams, Legal Negotiation and Settlement

Philip H. Gulliver, Disputes and Negotiations: A Cross-Cultural Perspective

Problem 1-8

Russell Korobkin, A Positive Theory of Legal Negotiation

3. Learning How to Negotiate

Scott R. Peppet & Michael L. Moffitt, Learning How to Negotiate

Further Reading

Chapter 2. Working with Your Client: Preparing for Negotiation by Learning from and Listening to Your Client

A. Attorney-Client Issues

Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes

Problem 2-1

Problem 2-2

Problem 2-3

Scott Peppet, Six Principles for Using Negotiating Agents to Maximum Advantage

Problem 2-4

Problem 2-5

B. Learning

Katherine R. Kruse, Beyond Cardboard Clients in Legal Ethics

Problem 2-6

Warren Lehman, The Pursuit of a Client’s Interest

David A. Lax & James K. Sebenius, Interests: The Measure of Negotiation

C. Listening

John L. Barkai, How to Develop the Skill of Active Listening

Douglas Stone, Bruce Patton & Sheila Heen, Difficult Conversations: How to Discuss What Matters Most

Problem 2-7

Guy Itzchakov & Avraham N. Kluger, Changing the Other Party’s Attitude with High Quality Listening

Problem 2-8

Further Reading

Chapter 3. Working with Your Client: Interviewing, Counseling, Communicating

A. Interviewing

Stefan H. Kreiger & Richard K. Neumann, Jr., Essential Lawyering Skills: Interviewing, Counseling, Negotiation, and Persuasive Fact Analysis

Eric E. Vogt et al., The Art of Powerful Questions: Catalyzing Insight, Innovation, and Action

Problem 3-1

Problem 3-2

B. Counseling

Stefan H. Kreiger & Richard K. Neumann, Jr., Essential Lawyering Skills: Interviewing, Counseling, Negotiation, and Persuasive Fact Analysis

Marjorie C. Aaron, Client Science: Advice for Lawyers on Counseling Clients Through Bad News and Other Legal Realities

Jean R. Sternlight & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counseling Clients

Problem 3-3

Problem 3-4

C. Communication Modes

Andrea Kupfer Schneider & Sean A. McCarthy, Choosing Modes of Communication

Noam Ebner, Negotiating Via Email

Problem 3-5

Problem 3-6

Further Reading

Chapter 4. Preparation and Persuasion

A. Goals—Aspirations

Andrea Kupfer Schneider, Measuring Success

Problem 4-1

Jennifer Gerarda Brown, The Role of Hope in Negotiation

Problem 4-2

B. Limits—BATNA and Reservation Point

Roger Fisher, William Ury & Bruce Patton, Getting to YES: Negotiating Agreement Without Giving In

Russell Korobkin, A Positive Theory of Legal Negotiation

Problem 4-3

Jeffrey Senger, Decisionmaking Under Uncertainty

Problem 4-4

C. Criteria and Fairness

Problem 4-5

Problem 4-6

Roger Fisher, William Ury & Bruce Patton, Getting to YES: Negotiating Agreement Without Giving In

Problem 4-7

Russell Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach

Chris Guthrie, Principles of Influence in Negotiation

Problem 4-8

D. Talking Persuasively

Problem 4-9

Robert B. Cialdini, Influence: The Psychology of Persuasion

Douglas Stone, Bruce Patton & Sheila Heen, Difficult Conversations: How to Discuss What Matters Most

Problem 4-10

Further Reading

Chapter 5. Integrative Negotiation: Expanding the Pie and Solving the Problem

A. Theory of Integrative Negotiation

Problem 5-1

Roger Fisher, William Ury & Bruce Patton, Getting to YES: Negotiating Agreement Without Giving In

Problem 5-2

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving

Problem 5-3

B. Strategy of Integrative Negotiation

David A. Lax & James K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain

Problem 5-4

C. Skill Building for Creative Problem Solving

Jennifer Gerarda Brown, Creativity and Problem-Solving

Problem 5-5

Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in Legal Education?

Problem 5-6

Problem 5-7

Problem 5-8

Roger Fisher, Elizabeth Kopelman & Andrea Kupfer Schneider, Beyond Machiavelli: Tools for Coping with Conflict

Michael L. Moffitt, Disputes as Opportunities to Create Value

Further Reading

Chapter 6. Distributive Bargaining and Conflict Orientations

Howard Raiffa, The Art and Science of Negotiation

A. Adversarial Approach

1. The Theory of Adversarial Approaches

Gary Goodpaster, A Primer on Competitive Bargaining

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving

2. The Strategy of Adversarial Approaches

Michael Meltsner & Philip G. Schrag, Negotiation

Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes

Problem 6-1

Problem 6-2

3. Concerns with Adversarial Approaches

Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving

Problem 6-3

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style

B. Accommodating

1. Theory and Strategies of Accommodating

Roger Fisher, William Ury & Bruce Patton, Getting to YES: Negotiating Agreement Without Giving In

Gerald R. Williams, Legal Negotiation and Settlement

Problem 6-4

2. Concerns with an Accommodating Approach

Chester L. Karrass, The Negotiating Game

Problem 6-5

Problem 6-6

C. Conflict Orientation

Kenneth Thomas, Conflict and Conflict Management

Andrea Kupfer Schneider & David Kupfer, Smart & Savvy: Negotiation Strategies in Academia

Further Reading

Chapter 7. Choosing a Negotiation Approach

Carrie Menkel-Meadow, The Morality of Compromise

Problem 7-1

A. The Prisoner’s Dilemma

Douglas R. Hofstadter, Metamagical Themas: Questing for the Essence of Mind and Pattern

Problem 7-2

Problem 7-3

Robert Axelrod, The Evolution of Cooperation

Problem 7-4

Michael L. Moffitt, Disputes as Opportunities to Create Value

Douglas R. Hofstadter, Metamagical Themas: Questing for the Essence of Mind and Pattern

Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing

Problem 7-5

Natalie Angier, Why We’re So Nice: We’re Wired to Cooperate

Problem 7-6

B. Negotiator’s Dilemma

David A. Lax & James K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain

Problem 7-7

C. Choosing Among Negotiation Approaches

Carrie Menkel-Meadow, The Art and Science of Problem Solving Negotiation

Problem 7-8

Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style

Peter S. Adler, Protean Negotiation

Further Reading

Part II. Skills for Negotiation

Chapter 8. Relating to Your Counterpart: Information Exchange, Trust, Apology, Reputation, and Power

A. Information Exchange

Carrie Menkel-Meadow, Know When to Show Your Hand

Peter Reilly, Was Machiavelli Right? Lying in Negotiation and the Art of Defensive Self-Help

Problem 8-1

B. Trust

Roy J. Lewicki, Trust and Repair

Moty Cristal, Negotiating in a Low-to-No Trust Environment

C. Apology

Jennifer Gerarda Brown & Jennifer K. Robbennolt, Apology in Negotiation

D. Reputation

Catherine H. Tinsley, Jack Cambria & Andrea Kupfer Schneider, Reputation in Negotiation

Problem 8-2

E. Power

Peter T. Coleman, Power and Conflict

Problem 8-3

Robert S. Adler & Elliot M. Silverstein, When David Meets Goliath: Dealing with Power Differentials in Negotiations

Problem 8-4

Further Reading

Chapter 9. Working with Your Counterpart: Understanding and Emotions

A. Understanding Yourself

Melissa Nelken, Negotiation and Psychoanalysis: If I’d Wanted to Learn About Feelings, I Wouldn’t Have Gone to Law School

Roger Fisher & Wayne H. Davis, Six Basic Interpersonal Skills for a Negotiator’s Repertoire

Problem 9-1

Problem 9-2

B. Understanding Your Counterpart

Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond Winning: Negotiating to Create Value in Deals and Disputes

Problem 9-3

Roger Fisher, Elizabeth Kopelman & Andrea Kupfer Schneider, Beyond Machiavelli: Tools for Coping with Conflict

Problem 9-4

Rick Ross, The Ladder of Inference

James H. Stark & Douglas N. Frenkel, Changing Minds: The Work of Mediators and Empirical Studies of Persuasion

Andrea Kupfer Schneider, Effective Responses to Offensive Comments

Problem 9-5

C. Emotions and Mood

Daniel L. Shapiro, Emotions in Negotiation: Peril or Promise?

Melissa L. Nelken, Andrea Kupfer Schneider & Jamil Mahaud, If I Wanted to Teach About Feelings, I Wouldn’t Have Become a Law Professor

Peter Reilly, Teaching Law Students How to Feel: Using Negotiations Training to Increase Emotional Intelligence

Problem 9-6

Clark Freshman, Adele Hayes & Greg Feldman, The Lawyer-Negotiator as Mood Scientist: What We Know and Don’t Know About How Mood Relates to Successful Negotiation

Problem 9-7

D. Social Intuition

Andrea Kupfer Schneider & Noam Ebner, Social Intuition

Problem 9-8

Further Reading

Chapter 10. Recognizing and Responding to Challenges in Negotiations

A. Psychological Factors Affecting Negotiation

1. Heuristics and Biases

Russell Korobkin & Chris Guthrie, Heuristics and Biases at the Bargaining Table

2. Status Quo Barriers

Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive Perspective

Problem 10-1

Problem 10-2

Richard Birke, Reconciling Loss Aversion and Guilty Pleas

Andrea Kupfer Schneider and Cynthia Alkon, Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining

Problem 10-3

3. Informational Barriers

Robert H. Mnookin, Why Negotiations Fail: An Exploration of Barriers to Conflict Resolution

Max H. Bazerman & Margaret A. Neale, Negotiating Rationally

Problem 10-4

Daniel Kahneman & Amos Tversky, Conflict Resolution: A Cognitive Perspective

4. Gamesmanship Barriers

Max H. Bazerman & Margaret A. Neale, Negotiating Rationally

Lee Ross, Reactive Devaluation in Negotiation and Conflict Resolution

Problem 10-5

B. Strategies for Recognizing and Responding to Negotiation Barriers and Dilemmas

Andrea Kupfer Schneider, Effective Responses to Offensive Comments

Problem 10-6

William Ury, Getting Past No: Negotiating with Difficult People

Problem 10-7

Problem 10-8

Further Reading

Chapter 11. Dealing with Differences: Culture, Gender, Race, and Others

A. Culture

Jeffrey Z. Rubin & Frank E.A. Sander, Culture, Negotiation, and the Eye of the Beholder

Problem 11-1

Jeswald W. Salacuse, Ten Ways That Culture Affects Negotiating Style: Some Survey Results

Problem 11-2

Problem 11-3

B. Gender

Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development

Carrie Menkel-Meadow, Feminist Discourse, Moral Values and the Law—A Conversation

Problem 11-4

Problem 11-5

Andrea Kupfer Schneider, Negotiating While Female

Problem 11-6

C. Race

Ian Ayres, Further Evidence of Discrimination in New Car Negotiations and Estimates of Its Cause

Michael Z. Green, Negotiating While Black

Phyllis Beck Kritek, Negotiating at an Uneven Table: A Practical Approach to Working with Difference and Diversity

Problem 11-7

Further Reading

Part III. Law and Ethics in Negotiation

Chapter 12. Ethics in Negotiation

A. How Lawyers (Should) Behave in Negotiations

Carrie Menkel-Meadow, What’s Fair in Negotiation? What Is Ethics in Negotiation?

B. Ethical Rules and Legal Obligations

1. The Law of Misrepresentation and Fraud

Restatement (Second) of Torts §525

Restatement (Second) of Contracts §§161, 164

a. Misrepresentation

Stare v. Tate

Problem 12-1

b. Omissions

G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People

Problem 12-2

c. Material Facts

Vulcan Metals Co. v. Simmons Manufacturing Co.

Problem 12-3

Beavers v. Lamplighters Realty

Kabatchnick v. Hanover-Elm Building Corp.

Problem 12-4

d. Recovery

Problem 12-5

2. Ethical Rules

Carrie Menkel-Meadow, Ethics, Morality and Professional Responsibility in Negotiation

Problem 12-6

G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable People

James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation

Problem 12-7

Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession

Problem 12-8

Problem 12-9

Art Hinshaw, Peter Reilly & Andrea Kupfer Schneider, Attorneys and Negotiation Ethics: A Material Misunderstanding?

Further Reading

Chapter 13. The Law of Negotiation

A. Negotiated Settlements as Contracts

Problem 13-1

B. Legal Authority to Negotiate: Lawyer-Client/Agent-Principal

Restatement (Third) of Agency §§1.01, 2.02

Model Rule of Professional Conduct 1.2

Covington v. Continental General Tire, Inc.

Problem 13-2

C. Duty to Bargain

D. Rules with Incentives to Bargain: Fees and Costs of Negotiating

Federal Rule of Civil Procedure 68

Problem 13-3

Evans v. Jeff D.

Problem 13-4

E. Multiple-Party Settlements

1. Lawyers’ Duties with Multiple Clients

Model Rule of Professional Conduct 1.8(g)

2. Class Actions

Amchem Products, Inc. v. Windsor

Problem 13-5

3. Joint and Several Liability for and Contributions to Settlements: Mary Carter Agreements

Problem 13-6

F. Confidentiality, Secrecy, and Transparency of Negotiations

Federal Rule of Evidence 408

David Luban, Settlements and the Erosion of the Public Realm

Carrie Menkel-Meadow, Public Access to Private Settlements: Conflicting Legal Policies

Problem 13-7

G. Judicial Review of Negotiated Settlements

Spaulding v. Zimmerman

Problem 13-8

H. Taxation of Negotiated Settlements and Attorneys’ Fees

Problem 13-9

Further Reading

Part IV. Complex Negotiation Processes

Chapter 14. Multiparty Negotiation

A. Multiparty Dispute Processes: How Are They Different?

1. Negotiating with More Than Two Parties: Coalitions and Groups

Carrie Menkel-Meadow, Introduction, Multi-Party Dispute Resolution, Democracy and Decision Making

Robert H. Mnookin, Strategic Barriers to Dispute Resolution: A Comparison of Bilateral and Multilateral Negotiations

Leigh L. Thompson, The Mind and Heart of the Negotiator

Problem 14-1

James K. Sebenius, Mapping Backward: Negotiating in the Right Sequence?

Problem 14-2

Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes

Problem 14-3

2. Organizing and Legitimizing Group Negotiations: New Processes and Deliberative Democracy

Carrie Menkel-Meadow, The Lawyer’s Role(s) in Deliberative Democracy

Carrie Menkel-Meadow, Introduction: From Legal Disputes to Conflict Resolution and Human Problem Solving

Problem 14-4

Philip J. Harter, Negotiating Regulations: A Cure for Malaise

3. Legal Issues in Use of Consensus Building and Group Negotiations

Dwight Golann & Eric E. Van Loon, Legal Issues in Consensus Building

Jeffrey R. Seul, Settling Significant Cases

Problem 14-6

Problem 14-7

B. Structures, Procedures, and Skills for Multiparty Processes and Dispute System Design

Lawrence Susskind, An Alternative to Robert’s Rules of Order for Groups, Organizations, and Ad Hoc Assemblies That Want to Operate by Consensus

Problem 14-8

Robert Dingwall & Carrie Menkel-Meadow, Negotiating Against a Script

Further Reading

Chapter 15. International Negotiation

A. Causes of International Conflict

Samuel P. Huntington, The Clash of Civilizations?

Problem 15-1

B. International Negotiation

Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games

Andrea Kupfer Schneider, Book Review, Getting to NAFTA: A Review of Interpreting NAFTA by Frederick W. Mayer

Problem 15-2

Robert H. Mnookin, When Not to Negotiate: A Negotiation Imperialist Reflects on Appropriate Limits

Carrie Menkel-Meadow, Compromise, Negotiation and Morality

Problem 15-3

Carrie Menkel-Meadow, Deconstructing Henry: Negotiation Lessons from Kissinger’s Career

C. Facilitated Negotiation: International Mediation

Roger Fisher, Elizabeth Kopelman & Andrea Kupfer Schneider, Beyond Machiavelli: Tools for Coping with Conflict

Problem 15-4

I. William Zartman, The Timing of Peace Initiatives: Hurting Stalemates and Ripe Moments

John Paul Lederach, Cultivating Peace: A Practitioner’s View of Deadly Conflict and Negotiation

Problem 15-5

Daniel Curran, James K. Sebenius & Michael Watkins, Two Paths to Peace: Contrasting George Mitchell in Northern Ireland with Richard Holbrooke in Bosnia-Herzegovina

Problem 15-6

Further Reading

Chapter 16. Facilitated Negotiation: Mediation

A. Introduction to Mediation

1. What Is Mediation?

2. The Advantages of Mediation

a. Settlement: Avoiding the Expense, Delay, and Risk of Adjudication

b. Participation and Self-Determination: Giving Parties Voice and Choice

c. Better Outcomes: Generating Creative Problem Solving

d. Relationship, Community, and Harmony: Building Bridges Between People

Problem 16-1

3. A History and Overview of Mediation in the United States

a. Roots

b. Labor

c. Community

d. Family

e. Civil Cases

f. Cybermediation

g. Other Arenas

4. Two Perspectives on Mediation

Carrie Menkel-Meadow, Introduction

Lon L. Fuller, Mediation—Its Forms and Functions

Problem 16-2

B. Approaches to Mediation

1. Narrow or Broad Problem Definition, Evaluative or Facilitative

Leonard L. Riskin, Mediator Orientations, Strategies and Techniques

Problem 16-3

2. Problem-Solving, Understanding-Based, or Transformative

Gary Friedman & Jack Himmelstein, The Understanding-Based Model of Mediation

Robert A. Baruch Bush & Joseph P. Folger, The Promise of Mediation

Problem 16-4

3. Trashing, Bashing, or Hashing

James J. Alfini, Trashing, Bashing, and Hashing It Out: Is This the End of “Good Mediation”?

Problem 16-5

4. Dispute Settlement or Transaction and Relationship Formation

Scott R. Peppet, Contract Formation in Imperfect Markets: Should We Use Mediators in Deals?

Problem 16-6

C. Examples of Mediations

Frank J. Scardilli, Sisters of the Precious Blood v. Bristol-Myers Co.: A Shareholder-Management Dispute

Problem 16-7

Eric Galton, Mediation of Medical Negligence Claims

Problem 16-8

Lela P. Love, Glen Cove: Mediation Achieves What Litigation Cannot

Problem 16-9

Further Reading

Table of Online Resources

Table of Rules and Statutes

Table of Cases

Collected References

Index

Andrea Kupfer Schneider is a Professor of Law and Director of the Kukin Program for Conflict Resolution at Cardozo School of Law. Professor Schneider was the previous director of the nationally ranked dispute resolution (DR) program at Marquette University Law School in Wisconsin, where she taught DR, Negotiation, Ethics and International Conflict Resolution for over two decades. In addition to overseeing the DR program, Professor Schneider was the inaugural director of the university’s Institute for Women’s Leadership.

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