• ADR and college football:  In the course of its struggle to free itself from the Big East conference, West Virginia University finds itself ordered to engage in non-binding mediation with conference reps.
• Same ADR process, very different context:  The Department of Justice hopes that mediation can serve as a foreclosure intervention.
• Worlds collide:  The 9th Circuit tries to sort out the complicated jurisprudence on the reach of the Federal Arbitration Act.
• Across the globe, a journalist reflects on over 30 years of negotiations in the Middle East, and makes a pitch for Saudi Arabia to join the table.
• Finally, a new study finds that some surprisingly simple instructions can affect women’s success in negotiations.

An able negotiator knows that a crucial step in entering any negotiation is understanding when to break off negotiations i.e., knowing your BATNA (Best Alternative To a Negotiated Agreement). To discover your BATNA, you must first determine your reservation value. Your reservation value is the lowest value at which you would consider the negotiation worthwhile. Once you have determined your reservation value you must  establish all possible alternatives to the negotiation. Finally, at any point during the negotiation, you can compare your reservation value to your possible alternatives and readily determine your best alternative, or your BATNA.

These are among the basic principles of negotiation, but they are not limited to negotiation. These are principles that can be applied to most decisions we face, from important, to less important decisions.

We are currently in the midst of an exciting contest for the Republican nomination for the Presidential Candidate to face off against incumbent President, Barrack Obama. Recently, voters in Iowa came out strongly in favor of Mitt Romney and Rick Santorum. I would like to explore why people voted for Santorum, and was it really better than their BATNA, using the principles laid above.

The first question is why cast a vote at a primary/caucus. I suppose that people vote because they want to participate in choosing the candidate who will represent their party in the general election and ultimately, serve as President. The second question is why vote for a specific candidate. This is a more difficult question because there is broad range of possibilities. Voters may believe that the candidate’s beliefs and opinions are most closely aligned with the voters’ own beliefs and opinions and because they would prefer a kindred spirit running the country, they will vote for that candidate. Other voters may not have strong feelings about the hot topic issues and instead looks for leadership qualities befitting a Head of State. Hopefully, most voters recognize that these considerations should not be considered in a vacuum, because a candidates opinions and leadership qualities, are both vitally important.

Following the principles of negotiation, I will attempt to demonstrate why voting for Santorum is  indefensible.  In this illustration, voting will take the place of sitting at the negotiating table. A voter must know his/her BATNA and so must first determine his/her reservation value. In voting in a primary, one could argue that there is no reservation value for voting, because there is no possible negative outcome for voting for the candidate of the voter’s choosing, in the way that remaining at the negotiating table can lead to agreeing to a deal detrimental to negotiator. Thus, there is no need to discover other alternatives or even the best alternative, because there is simply no point at which the voter will not vote (this discussion is not factoring in the de minimis costs of casting a vote such as time).

However, this analysis is fundamentally incorrect. There is a possible negative outcome for a voter who votes for an unelectable candidate such as Rick Santorum (of course if a republican voter’s second choice after Santorum is Obama, then the following discussion does not apply, but I do not believe that such a voter exists). A voter’s reservation value should include an analysis of the unelectability of the candidate. The voter must factor in the importance having a candidate from his/her own party win the election. Thus, the reservation value for voting for a specific candidate, must at the very least be the point at which a candidate will have a chance at winning the general election. Voting for an unelectable candidate is not only a waste of time and utility, but  also should be understood to be outside a voter’s ZOPA, or Zone Of Possible Agreement, and thus below the voter’s reservation value, and the voter’s BATNA would either be not voting, or voting for the most tolerable electable candidate.

Voting for Santorum in the hope that he will represent the Republican Party in the upcoming presidential election against Obama should be recognized as below any Republican voter’s reservation value of having a Republican in office. His stances on banning contraception gay marriage may have support from the far right, but will alienate the all important moderate republicans and independents and render him utterly unelectable. Voting for Santorum is akin to voting for Obama.

Hello Dedicated Readers,

In case somehow you have not heard the news, I will inform you of the recent events in Geneva.

In brief, States from across the globe gathered in Geneva to negotiate a multi-lateral international agreement regarding Cluster Munitions. The basic mechanism of Cluster Munitions is that a large bomb containing many smaller munitions is dropped or launched on an area. These smaller munitions spread out over a large area and are intended to explode on impact. One of the problem presented by Cluster Munitions is that too often, these smaller munitions do not explode on impact and remain in place for years. They are hidden killers, picked up by children mistaking them for toys, stepped on by unsuspecting farmers. To prevent further civilian killings States attempted to add a Protocol to the Convention of Conventional Weapons (CCW) to regulate Cluster Munitions.

For further background information, this agreement was negotiated in the backdrop of the already existing Convention on Cluster Munitions (CCM), which absolutely bans the use of Cluster Munitions, but is not signed by the major user states. Many states feared that a weak agreement in the CCW would undermine the gains realized by the CCM. In the end the CCW proposal failed to gain the necessary consensus and died there.

For a more detailed analysis on these exciting events by actual participants and fellow HLS students, here is a blog post written by Anna Crowe and Nicolette Boehland for the HRP blog found here http://harvardhumanrights.wordpress.com/2011/11/23/dispatch-from-geneva/

Diplomats from more than 100 countries are currently engaged in heated deliberations in Geneva over a proposed protocol, put forward by the United States and others, that would allow the use of certain cluster munitions indefinitely.  The International Human Rights Clinic has joined a group of nongovernmental organizations in arguing against the proposal, which would threaten the impact of an existing international treaty that protects civilians by absolutely banning the weapons.

If adopted, the proposed protocol would directly compete with the Convention on Cluster Munitions, a treaty that seeks to eliminate the devastating effects of cluster munitions on civilians.  More than 108 countries have signed on to that convention, which went into force August 2010, and 66 states are full parties, bound by all its provisions.  The convention prohibits use, production, transfer, and stockpiling of cluster munitions and obliges states to provide assistance to victims of past use.

The United States, which is not a party to the Convention on Cluster Munitions, has led the charge for the new protocol over the last week at the Review Conference of the Convention for Conventional Weapons (CCW) in Geneva.  The protocol would be attached to the CCW framework convention, an umbrella treaty with protocols governing specific types of weapons.  Protocol supporters argue that certain major stockpilers and users of cluster munitions who are not currently party to the Convention on Cluster Munitions might join this proposed protocol because it is not a complete ban.

But the Clinic argued in a paper distributed to delegates last week that the new protocol would constitute an unprecedented step backwards in terms of international humanitarian law.  The international community has never adopted a treaty that provides weaker protections for civilians from armed conflict than a treaty already in force.

Furthermore, adoption of the proposed protocol would water down the stigmatization of cluster munitions by permitting future use.  Though the proposed protocol would ban cluster munitions produced prior to 1980, it would allow states to continue to use some other models of cluster munitions for 12 years and some forever.  The proposed treaty also contains weak and inadequate provisions regarding stockpiling destruction and victim assistance.

The Clinic strongly believes that, much like antipersonnel landmines, cluster munitions cause an unacceptable level of harm to civilians.  Because they release dozens or hundreds of explosive submunitions across a large area, civilian casualties are virtually guaranteed when cluster munitions are used in populated areas, as they often have been.  In addition, the submunitions frequently fail to explode on impact, leaving explosive remnants that can kill and injure civilians months or years after a conflict has ended.

A team from the Clinic traveled to Geneva this week as part of the Human Rights Watch (HRW) delegation.  The Clinic has a longstanding partnership with HRW on weapons issues; Senior Clinical Instructor Bonnie Docherty is also a senior researcher in HRW’s Arms Division.  We, along with Robert Yoskowitz, JD ’13, are working under her supervision at the CCW conference this week.

During the conference, we have provided real-time legal analysis of each new draft protocol text.  We have also written articles for the regular CCW Newsproduced by the Cluster Munitions Coalition (CMC), a coalition of NGOs, including HRW, that campaigns to ban cluster munitions and that helped create the CCM.  The Coalition is lobbying hard this week to prevent the proposed protocol from moving forward.

In order for the CCW conference to adopt a new protocol on cluster munitions, there must be consensus—and there is clearly no consensus yet.  There are still two days of negotiations left, however.  The atmosphere is tense, but hopes are high for a good outcome.

Nicolette Boehland, JD ’13, and Anna Crowe, LLM ’12, are members of the Clinic’s Cluster Munitions team.

What an event!

Last Wednesday afternoon, Harvard Mediation Program, Harvard Negotiation Law Review, and Harvard Negotiators, sponsored an ADR Jobs Panel to discuss different careers in the field of Alternative Dispute Resolution.

A number of practitioners from across the ADR spectrum, including consultants, facilitators, negotiators, mediators, and arbitrators discussed their careers and provided advice to students.

Photos and Bio’s of the panelists below. More on the event to come. Stay tuned!

Chad Carr – Moderator (ccarr@law.harvard.edu)

• Lecturer on Law, Harvard Law School
• Adjunct Professor of Law, Georgetown University Law Center
• Negotiation and Mediation Clinical Instructor

Chad Carr has taught ADR at the University of Oregon Law School, Vermont Law School, and the Georgetown University Law Center. He served on the board of the of the Community Dispute Settlement Center in Cambridge, Mass., a nonprofit focused on providing low cost mediation and conflict resolution services and training. He practiced corporate law at Ropes & Gray, LLP in Boston and clerked for the Honorable Patti B. Saris in the U.S. District Court in the District of Massachusetts. Mr. Carr will teach in the Negotiation Workshop in the Spring 2012 term.

Elaine Lin – Consultant, Triad Consulting Group (lin@diffcon.com)

Elaine Lin has designed and delivered negotiation trainings for a wide range of clients and is equally at ease in the corporate, government, and non-profit sectors. She facilitated executive education programs at the Harvard Negotiation Institute, where participants included executives of Fortune 500 companies and partners of major international law and accounting firm. She has spoken in Europe on negotiating in times of financial crisis and creating dialogue in post-genocide communities. Her work also includes training newly elected political officials, union leaders and instructors at military academies.

She graduated from Harvard Law School, where she co-facilitated classes on negotiation. She served as Chair of Harvard Negotiators, an organization focused on applying negotiation and alternative dispute resolution theory to real world situations. Under her leadership, the organization designed conflict resolution curricula for an international organization working with at-risk youth, developed negotiation programs for a prison rehabilitation program, and surveyed best practices for matrimonial lawyers. Elaine also served as the Advanced Training Director for the Harvard Mediation Program.

She has worked as a Senior Consultant for Conflict Management Australasia, where she taught negotiation and mediation at Monash Law School and coached executives in difficult conversations. Her representative clients include Shell, IBM, ANZ Bank, ARUP, Philip Morris, Energy and Water Ombudsman of Victoria, the Red Cross, and various Australian government departments.

Victoria Shannon   -   Deputy Director Arbitration and ADR, North America, International

Chamber of Commerce’s International Court of Arbitration (vshannon@uscib.org)

Victoria Shannon serves as Deputy Director of Arbitration and ADR in North America for International Chamber of Commerce’s International Court of Arbitration. In this capacity, Ms. Shannon advises North American attorneys and companies on all phases of ICC dispute resolution services, including arbitration, ADR, Pre-Arbitral Referee proceedings, Expertise proceedings and Dispute Boards.

Prior to joining ICC, Ms. Shannon served as an associate with Pillsbury Winthrop Shaw Pittman LLP, where she specialized in bond and tax-credit financing as well as matters involving American Indian tribes. Ms. Shannon holds a bachelor’s degree in psychology from Harvard University and a law degree from Harvard Law School. She participated in the inaugural class of Harvard’s Presidential Management Fellowship Program, where she served as External Relations Fellow in the Office of Government, Community and Public Affairs. Ms. Shannon currently serves as Admissions Chair for the Harvard Black Alumni Society.  She is a member of the bar in New York, New Jersey and the District of Columbia.

Ellie Tonkin – Director of Regional ADR Program, EPA (Tonkin.Elissa@epamail.epa.gov)

Elissa Tonkin, a senior attorney and experienced mediator and facilitator with the United States Environmental Protection Agency’s Boston office, currently serves as Director of EPA’s leading Regional ADR Program, charged with promoting the Agency’s effective use of alternative dispute resolution to settle cases, promote constructive dialogue on environmental issues, and enhance environmental decision-making.

Ms. Tonkin has managed EPA’s leading regional ADR program since 1994. She is charged with promoting the Agency’s effective use of alternative dispute resolution to settle cases, promote constructive dialogue on environmental issues, and enhance environmental decision-making. She has served as Superfund section chief within the Office of Regional Counsel. Prior to that, she worked as a Superfund case lawyer and as Special Assistant U.S. Attorney for the District of Massachusetts on detail from EPA.

Before coming to the government, she spent three years as a civil litigator with the Boston office of Hinckley, Allen. An experienced mediator and facilitator, Ms. Tonkin is significantly involved in the development of EPA policy and practice nationally regarding the use of ADR, particularly in the areas of superfund, public consensus-building processes, and regulatory enforcement cases. She is also an adjunct faculty member of the University of Massachusetts, Boston, Graduate Program in Dispute Resolution. She received a B.A., magna cum laude, from Amherst College in 1977, and a J.D. from the University of Michigan Law School in 1984.

Rachel Viscomi – Vantage Corporate Education (rviscomi@vantagecorped.com)

Rachel Viscomi is a Principal within Vantage Partners’ Corporate Education practice, where she works with clients to design and deliver learning experiences that maximize learning transfer and business impact.  Ms. Viscomi travels nationally and internationally, assisting corporations across industries to develop the skills that support business success in areas such as Negotiation, Communication, Influence and Managing Change.

A graduate of Harvard Law School, Ms. Viscomi is a veteran member of the teaching team for Harvard’s Negotiation Workshop and brings her experience from Harvard into the Vantage classroom by developing and delivering workshops that enable organizations to change the way they do business.

Prior to joining Vantage, Ms. Viscomi practiced as a civil litigator with the law firm of Bingham McCutchen, LLP, where she assisted a wide variety of clients (including The New York Times Company, Northwestern Mutual Insurance Company, and MetLife Investment Services) in resolving complex commercial disputes. Outside of her law practice, Ms. Viscomi brings expertise in helping organizations and individuals rethink the way they deal with conflict. She has delivered conflict resolution workshops for entities including Exelon Corporation, the University of Amsterdam’s ADR Institute, and The Citadel, The Military College of South Carolina.

Welcome to HNLR’s new and exciting blog, Negotiator’s Corner!

The first order of business is to suggest new names! Because this one is awful!

Don’t worry my dear readers, more negotiation-related to come!

Do I use too many exclamation points?! Be honest!

By Matthew Parker, a 3L law student at Harvard Law School

I. Introduction: The Role of Culture in Email Negotiations

Culture fundamentally affects email negotiations. In an increasingly globalized world where cross-border negotiations have increased substantially[1] and the use of email communication has grown exponentially,[2] surprisingly little research, however, has been conducted on culture’s role in email negotiations. Culture supplies the building blocks for interpreting and structuring social interactions like negotiations,[3] and email can fundamentally change how these social interactions are played out.[4] In this article, I bridge the gap in current negotiation research between culture and email to argue that culture is an important factor in email negotiations that influences negotiation behaviors and outcomes. Taking a case study approach by examining literature on cross-cultural negotiations between American and Chinese negotiators, I contend that different cultural influences affect the behavior of negotiators from the United States and China when they negotiate together using email.

I begin this article by reviewing some of the existing literature on the effects of culture on negotiation before turning to an examination of the way that email changes the negotiation dynamic. Combining research on email negotiations with literature on the role of culture in the negotiation process, I show that culture affects email negotiations. I then conclude by summarizing my findings and suggesting avenues for further research into the dynamic interplay between culture, email and negotiation.

II. Culture and Negotiation: A Review of the Impact of Culture on American and Chinese Negotiators

The way people understand and act during a negotiation reflects fundamental cultural assumptions varying along numerous cultural dimensions that are explored in this section of the paper.[5] While it is certainly true that there is substantial variation in negotiation behaviors, norms, values and beliefs within a culture, there is a greater and sometimes even dramatic variation between cultures.[6] The most significant cultural differences among American and Chinese negotiators occur along the individualism-collectivism, high-low power distance and high-low context dimensions.[7] Each of these differences warrants further discussion because they have a significant impact on the way American and Chinese negotiators negotiate.

1. a.     The Individualism-Collectivism Dimension

American culture is often characterized as individualist whereas Chinese culture is seen as more collectivist.[8] In countries with highly individualist cultures like the United States, people are more likely to consider themselves as independent of the social group and thus more free to focus on personal goals.[9] As a result, American negotiators generally rely more on analytical-rational thinking styles that focus on the problem, and use tactics such as argumentation based on logic and the presentation of facts.[10] In contrast, negotiators from countries with more collectivist cultures like China rely more on intuitive-experiential thinking styles and use tactics that appeal to emotions, social obligations, and the desire to maintain harmony and save face.[11] Consequently, Chinese negotiators are more likely to think about negotiation in terms of relationships whereas American negotiators are generally more focused on outcome.[12]

New research, however, suggests that these characterizations about individualist and collectivist negotiation styles may be too simplistic and that collectivists may actually act more aggressively to out-group members (i.e. people who are not a part of their collective).[13] Researchers posit that when negotiating with strangers outside their culture, negotiators from collectivist cultures may no longer feel constrained by a concern for others and are thus more likely to reveal their egotistical sides.[14] It is thus clear that the individualism-collectivism dimension affects how negotiators negotiate, suggesting for our purposes that this cultural dimension has implications for American-Chinese email negotiations.

[1] See Wendi Adair et al., Culture and Negotiation Strategy, Negot. J. 87, 87 (2004).

[2] See Janice Nadler & Donna Shestowsky, Negotiation, Information Technology, and the Problem of the Faceless Other, in Negotiation Theory and Research 145, 145 (Leigh Thompson ed., 2006).

[3] Jeanne Brett & Michael Gelfand, A Cultural Analysis of the Underlying Assumptions of Negotiation Theory, in Frontiers of Social Psychology: Negotiations 173, 175 (Leigh Thompson ed. 2005).

[4] See, e.g., Nadler & Shestowsky, supra note 2, at 145; Ashleigh Rosette et al., When Cultures Clash Electronically: The Impact of Email and Culture on Negotiation Behavior 3 (Disp. Resol. Res. Ctr., Nw. U., Working Paper No. 302, 2004); Michael Morris et al., Schmooze or Lose: Social Friction and Lubrication in E-Mail Negotiations 6 Group Dynamics: Theory, Res., and Prac. 89 (2002).

[5] Brett & Gelfand, supra note 3, at 175.

[6] Jeanne Brett et al., Culture and Joint Gains in Negotiation, 14 Negot. J. 61, 79 (1998).

[7] Wendy Adair & Jeanne Brett, Culture and Negotiation Process, in The Handbook of Negotiation and Culture 158, 161 (Michele Gelfand & Jeanne Brett eds., 2004); E. Alan Buttery & T.K.P. Leung, The Difference Between Chinese and Western Negotiations, 32 Eur. J. Market. 374, 375-77 (1998).

[8] Brett et al., supra note 6, at 65-67.

[9] Adair & Brett, supra note 3, at 160.

[10] Gregory Kersten et al., The Effects of Culture in Anonymous Negotiations: Experiment in Four Countries, in Proceedings of the 35th Hawaii International Conference on Systems Science 418, 421 (2002).

[11] Gelfand & Dyer, A Cultural Perspective on Negotiation: Progress, Pitfalls, and Prospects, 49 App. Psychol.: Int’l Rev. 62, 81 (2000); Adair & Brett, supra note 7, at 159-60.

[12] See Adair & Brett, supra note 7, at 160-61.

[13] Xiao-Ping Chen & Shu Li, Cross-National Differences in Cooperative Decision-Making in Mixed-Motive Business Contexts: The Mediating Effect of Vertical and Horizontal Individualism, 36 J. Int’l Bus. Stud. 622, 624 (2005); at 624; Rosette et al., supra note 4, at 8.

[14] Chen & Li, supra note 13, at 624 (discussing a series of studies conducted by researcher Toshio Yamagishi).

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