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Cardozo Journal of Conflict Resolution

Abstract

The goal of this article is to encourage the use of interestbased negotiations. Some of the stories included will be familiar; others will be fresh. In Getting to Yes, Fisher and Ury identify four principles of negotiation ("principled negotiation") that can be employed effectively in almost any type of dispute resolution: (1) Separate the people from the problem; (2) Focus on interests rather than positions; (3) Invent options for mutual gain; and (4) Insist on using objective criteria. Because focusing on interests is the second step identified in Getting to Yes, and inventing options for mutual gain is the next, some of the examples will include both sides of that interests/options coin. Many times a student has overlooked a creative solution tied to the underlying interests in a practice problem and then said during the ensuing class discussions, "I wish I had thought of that." Students also prefer examples and stories from practice to explanation by lecture. Thus, examples or stories supplemented by analytical narrative will be my primary methodology. In Section I, this article will discuss and explain interest-based issues applicable to both transactions and litigation. Next, in Section II, it will set out and analyze a number of creative uses of interest-based negotiations in a variety of transactional settings taken from books, articles, newspapers, and true stories solicited from lawyers and mediators. In Section III, numerous and varied litigation examples taken from many sources are analyzed and discussed. Hopefully, you find these examples and the related discussion educational, inspirational, and interesting.

Disciplines

Dispute Resolution and Arbitration | Labor and Employment Law | Law | Law and Society | Legal Education

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