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"Schneider, Andrea Kupfer"
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Negotiating from the Bully Pulpit: Teaching Trump, Tactics, and Turmoil
Most of those who teach negotiation tend to focus on problem-solving approaches as these are viewed as more effective and also more challenging to learn. Any good negotiation training duly points out \"hard\" bargaining tactics and difficult strategies that we might encounter. Public interest attorneys Michael Meltsner and Philip Schrag offered early advice on how to identify these tactics as have Robert Mnookin and his colleagues more recently. Throughout, the message is clear--you should not engage with them, but just in case you have no choice, here is what you can do. First threats and bullying can lead to backlash in the negotiation and second a reputation for bullying will precede the negotiator and lead the other party to assume tougher bargaining positions.
Journal Article
Beyond Theory: Roger Fisher's Lessons on Work and Life
This special section and the many other tributes to Roger Fisher's work are testament to the fact that meeting him was life-changing for a variety of people in a plethora of ways. The author remembers the first time that he spoke to professor Fisher. He was nervous. He was big in height and even bigger in reputation. His fears about working with a celebrated professor were unwarranted; Fisher was approachable, warm, and insisted upon being called by his first name. And so there was. Iraq had invaded Kuwait in August of 1990, and they had heard talk of the US becoming involved. He favored negotiations (not surprisingly), and so that fall they were busy preparing for US Senate testimony, writing letters to State Department officials and drafting an op-ed article for the Boston Globe. One of his most important lessons was that good ideas are worth hard work.
Journal Article
BARGAINING IN THE DARK
Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.
Journal Article
Bargaining in the Dark: The Need for Transparency and Data in Plea Bargaining,Bargaining in the Dark
Plea bargaining is the primary, and unavoidable, method for resolving the vast majority of criminal cases in the United States. As more attention is paid to reform and changes in the criminal legal system, plea bargaining has also come into the spotlight. Yet we actually know very little about what happens during that process—a potentially complex negotiation with multiple parties that can, at different times, include prosecutors, defense counsel, judges, defendants, and victims. Using negotiation theory as a framework, we analyze why more information about the process itself can improve this crucial component of the system. More information—more data—would permit informed judicial oversight of pleas, improve lawyers’ capacities to negotiate on behalf of clients and the state, and increase the legitimacy of the bargaining between parties where one side tends to have far more resources and power. Without increased transparency, many of the players in the criminal legal system are just bargaining in the dark.
Journal Article
Hybrid Warfare, International Negotiation, and an Experiment in “Remote Convening”
The authors are leading a multinational effort to understand the effects of “hybrid” warfare on international commercial negotiation. The start‐up process is itself essentially a negotiation, among about forty individual practitioners and scholars with very diverse backgrounds, over whether and how they will work together. In a pandemic, a key risk is that the necessary cooperation and trust will be harder to build, particularly among professionals who are dealing with security‐sensitive issues and who have never met each other. This article discusses the current necessity of replacing the in‐person model for eliciting such cooperation which the authors had developed previously for large collaborative projects, and describes a “remote convening” replacement process.
Journal Article
Attorneys and Negotiation Ethics: A Material Misunderstanding?
The authors research suggests that a true norm of ethical negotiation behavior exists within the legal profession. This conclusion is tempered, however, with the knowledge that a large minority of their research respondents -- at times approaching one-third of them -- engaged in unethical and even fraudulent behavior. In an attempt to understand the reasons for such a high frequency of unethical negotiation, they have identified three major contributing factors: too many lawyers have only a superficial understanding of rules that are more complicated than they appear; lawyers frequently take their \"zealous advocate\" role too fat thereby placing client loyalty above other important values such as respect for truth and justice; and the practice of law and the people who are drawn to it are highly competitive. They believe the only way to avoid lapses is to integrate conscious and reflective practices that can bring ethical concerns to the forefront of lawyers' decision-making and thought processes.
Journal Article
Women at the Bargaining Table: Pitfalls and Prospects
Research evidence across a number of disciplines and fields has shown that women can encounter both social and financial backlash when they behave assertively, for example, by asking for resources at the bargaining table. But this backlash appears to be most evident when a gender stereotype that prescribes communal, nurturing behavior by women is activated. In situations in which this female stereotype is suppressed, backlash against assertive female behavior is attenuated. We review several contexts in which stereotypic expectations of females are more dormant or where assertive behavior by females can be seen as normative. We conclude with prescriptions from this research that suggest how women might attenuate backlash at the bargaining table and with ideas about how to teach these issues of gender and backlash to student populations in order to make students, both male and female, more aware of their own inclination to backlash and how to rectify such inequities from both sides of the bargaining table. [PUBLICATION ABSTRACT]
Journal Article
Our Criminal Legal System: Plagued by Problems and Ripe for Reform
Without data showing what is actually happening in plea bargaining - how offers are given and countered; the timing and communication of offers; who gets offers and for what; and so forth, providing judicial oversight and requiring various actors to correct egregious behavior patterns are challenging.2 This analysis of how plea bargaining works - from negotiation expertise in theory and practice - is long overdue and would be a welcome addition to the criminal legal reform movement. Even the US Supreme Court has argued that plea bargaining - like all negotiation - is a matter of personal style, an individual mix of tactics and approaches, in which effectiveness cannot be defined.3 But dispute resolution professionals know better and understand that training - in everything from preparation to psychology and behavior economics to social intuition and emotional intelligence - will improve effectiveness. Since the United States' first drug court was introduced three decades ago, more than 3,000 problem-solving courts have been established nationwide, including drug courts (which make up 44% of all problem-solving courts) and mental health courts (which account for 11% of the total).5 These courts, which often are set up by judges who are looking for innovative and humane ways to deal with particular populations that they think deserve a different kind of process, include treatment and counseling with the threat of punishment for non-completion. [...]the field of restorative justice offers equally large opportunities for dispute resolution professionals.
Trade Publication Article