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The Law on Alternative Dispute Resolution: Private Justice in the Philippines (Book Summary and Cases) by: Marian Jane Alumbro University of Cebu College of La Based on t!e book of Jim Lopez Caveat: This is merely a summary of the book. You should read the book at least once. This reviewer does not contain some essential definitions because such are already defined in the law, RA 92 !. "o co#yri$ht infrin$ement is intended. C"A#$%& 1 $!e La 's delay: An introdu(tion "istory of A)& #re*!is+ani( era*Jose &i,al noted t!e (ustom of t!e in!abitants of t!e #!ili++ines before t!e S+aniards rea(!ed its s!ores$!ey submitted t!e de(ision of t!eir elders. !i(! t!ey res+e(ted and (arried outA((ording to Jose &i,al. it as better t!at t!e /--Judges ere +ersons of t!e lo(ality. forming a 0ury. ele(ted by bot! +arties !o kne t!e (ase. t!e (ustoms and usages better t!an t!e go ned 0udge from t!e outside to make !is fortune. to 0udge t!e (ase !e does not kno and !o does not kno t!e usage (ustoms and language of t!e lo(ality1- 2t is easy to surmise t!at our an(estors +ra(ti(ed A)&"is+ani( %ra*)is(ontented +arties !ad to resort to going to t!e SC of s+ain !i(! as a 34*day tri+- #ro(edure for (ivil a(tion. akt!oug! similar to t!e (riminal (ases. as definitely more (ostly and dra n*out- $!e !ig! (ost and un arranted delays ensured t!at only t!e %uro+eans and t!e ri(! mer(!ants in t!e (ity and t!e ealt!y lando ners in t!e rural areas (ould afford t!e +rose(ution of t!e (ivil suit-

5ur +rimitive an(estors times6

ere a!ead of t!eir

#roblems of 0udi(ial delay a((ording to Mar(os (1748): 1) $!e misuse of t!e due +ro(ess and t!e abuse of legal te(!ni(alities9 :) $!e intervention of t!e +oliti(al +ressure in t!e (ourt (ases9 3) S!eer eig!t of t!e (ourt litigations arising from develo+ment and gro t!9 ;) )ilatory ta(ti(s of la yers9 <) =egle(t and la>ity on t!e +art of t!e 0udges$!e /La 's delay1 a((ording to ?lorentino #- ?eli(iano: 1) An effi(ient and mismanaged (ourt system t!at fails to a(t +rom+tly on legal issues 9 :) $!e disorgani,ed state of t!e (ourt* (onne(ted agen(ies9 3) $!e la(k of +re+aration on t!e +art of t!e litigants and la yers9 ;) $!e trigger*!a++y mind frame of la yers to engage in long* inded e>aminations of itnesses9 and <) $!e la yers +ro+ensity to elevate t!eir (ases to t!e a++ellate (ourts and needlessly filing +etitions for mandamus. +ro!ibition and (ertiorari for t!e +ur+ose of revie ing t!e interlo(utory orders of t!e lo er (ourtsBut a more serious fa(tor be!ind t!e /la 's delay1 in t!e #!ili++ines involves t!e billing +ra(ti(e of la yers- (Billable !ours. number of (ourt a++earan(es) )elaying ta(ti(s to (onsume time-

$!e (!oi(e bet een a litigation and settlement is (lear- "e ould rat!er (ut t!roug! t!e (!ase and solve !is dis+utes s iftly and move on it! !is lifeA@A= v- #2A$C5 (@&A =5- 1<<B1)*SC ordered all affe(ted +arties to (omment made by one of t!e +arties t!at #2A$C5 (ommen(es arbitration +ro(eedings by filing a reCuest for arbitration it! t!e se(retariat of t!e 2nternation (!amber of (ommer(e. 2nternational Court of arbitration#rivate Justi(e*t!e (on(e+t is fairly re(ent develo+ment in t!e administration of 0usti(e*#rivate /Courts1 are managed by +rivate organi,ations. (alled A)& +roviders to serve t!ose !o need to resolve most ty+es of (onsumer. (ivil. (or+orate and (ommer(ial dis+utes*#arties generally agree to enter t!e +rivate (ourt system for one main reason: t!e +ubli( (ourt system is too (!aoti( and un ieldly*/vigilante 0usti(e1 *Judges. sele(ted by t!e +arties and are +aid on an !ourly or a +er session basis. are for rent not for sale- $!ey are +aid for t!eir time and t!eir e>+ertise. not t!eir e>+e(ted favorsC5=: Creates a dual (ourt system* one ri(! and one +oor- =o means a +erfe(t system. it offers enormous savings in time. effort. an>iety. money in t!e long !aulC"A#$%& : $!e litigation of (onfli(t: A Confu(ian Confusion $ o fundamental reasons for failure of trial (ourts a((ording to &al+! Darner and Ste+!en %lias: 1) Court &ules and #ro(edures are so (om+li(ated and ineffi(ient t!at

la yer fees and ot!er (osts end u+ being a bigger +roblem t!an t!e dis+ute itself:) Dinner take*all sustem defies logi(. en(ourages lying and generally brings out t!e orst in all +arti(i+ants$!e =ature of Confli(t Confli(t* (las! of divergen(e of o+inions. values and interests and emotionsSeveral +!ases of t!e (onfli(t +ro(ess by #eter Condiffe (177<) 1) Confli(t starts !en +arties +er(eive t!eir differen(es*t!ey go t!oug! feelings of an,iety and frustration:) &eali,ation or e>+ression of grievan(es and t!e assessment of all angles in t!e (onfli(t*some +arties get affli(ted it! AE52)A=C% SF=)&5M% (disregarding t!e e>isten(e of t!e +roblem be(ause of relative +o erlessness !ig! risks and (osts involved) 3) #arties (!oose t!eir (onfli(t resolution met!ods and sele(t t!eir strategies to settle t!eir disagreements;) %valuation of out(omes and t!e analysis of all ramifi(ations of full im+lementation of t!e (!osen met!ods of (onfli(t managementA)& aims to solve t!e (onfli(t not la suit !i(! is t!e aim of litigationin t!e

Confli(t is a (ontest and a +roblem to solve (Bill Dit!ers) Modes of &esolving Confli(t (Blake and Moulton) 1) Dit!dra al*Avoidan(e be!avior on one or bot! +arties

:) Smoot!ing*em+!asis of (ommon interest and yielding by one or bot! +arties3) Com+romising*ea(! side obtains a +art of !at it ants;) ?or(ing*for(ing a(Cuies(et!e ot!er to

*Mandating t!e SC to +romulgate rules t!at s!all /+rovide a sim+lified and ine>+ensive +ro(edure for t!e s+eedy dis+osition of (ases&ule 1H. Se( :(a) 1778 &ules of Civil #ro(edure *&eCuiring t!e (ourts to /(onsider t!e +ossibility of an ami(able settle or of a submission to alternative modes of resolution-1 /Alternative1 (omes from t!e ord /alternate1 !i(! means substitute. s+are tire. a se(ond stringer. a fallba(k +ositionD!i(! is rong be(ause litigation s!ould be t!e LAS$ o+tion not A)&Limitations of A)& Cases t!at involve:
1) Constitutional la :) Anti*trust suits 3) #robate ;) Ado+tion <) #re(edent*setting (ases t!at involve

<) #roblem solving*involves an agreement in !i(! bot! sides meet t!eir ob0e(tive and affe(tive needsD!en a +erson ins t!roug! a la suit (an (om+are it as a Pyrrhic victory (+ronoun(ed G+rkG) !i(! is a vi(tory it! devastating (ost to t!e vi(tor9 it (arries t!e im+li(ation t!at anot!er su(! ill ultimately (ause defeat2m+ortan(e of Litigation (#eter Loven!eim) 1) D!en you need to establis! a legal +re(edent. su(! as t!e validity of t!e +atent !i(! your (om+any !olds9 :) D!en you need to +ubli(y +rove t!e trut!. su(! as !en a (ustomer's (om+laint about t!e +rodu(t Cuality or safety !as re(eived ide attention in t!e media +rodu(t's good name9 3) D!en your (om+any's legal rig!ts !ave been infringed and you stand a good (!an(e of (olle(ting substantial damages in (ourt9 ;) D!en your o++onent is unable and un illing to +arti(i+ate in A)&9 and <) D!en serious (rimes are involved in t!e dis+uteC"A#$%& 3 $!e @rand Misnomer: /Alternative1 )is+ute &esolution1 Legal Basis of A)&: A&$- E222. Se(- < (<) 17H8 Consitution

issues

+unitive damages
4) A(tions of eCuitable relief. and 8) nuisan(e

are beyond t!e s(o+e of arbitrationA&$- :B3< of t!e Civil Code 2f related issues of t!e follo ing are matters in (ontroversy may not be (a+able of being referred to arbitration: 1) Civil Status of +ersons9 :) Ealidity of Marriage9 3) And legal se+aration9 ;) ?utures su++ort9

<) ?uture legitime9 4) Jurisdi(tion of t!e (ourts9 8) ?uture 0urisdi(tion of t!e (ourtsC"A#$%& 2E $!e Settlement of dis+ute in t!e #!ili++ines: A (ulture of #AI2I2SAMA Many ?ili+inos readily over(ome (onfli(t t!roug! +ragmati( means@ini @ra!am's te(!niCues in &esolving Confli(t: 1) 2dentify t!e sour(e of t!e +roblem :) A++lying t!e a++ro+riate +roblem solving te(!niCues: a- Creative visuali,ation* e>amine t!e reasons for t!e +roblem b- Brain*storming*(ome u+ alternatives it!

?ili+ino Ealues 1) #akikiusa+*reCuest and :) #akikisama*Com+anions!i+ Iee+ (ommuni(ation lines o+en1) Amor #ro+rio (self*res+e(t) :) #asikaban (one*u+mans!i+) 3) Ba!ala na (fatalism) ;) @anti!an (retaliation) 2m+ede settlement and +lays key roles in (logging t!e (ourts it! frivolous suits t!at are broug!t 0ust to /Save fa(e1 or to give a /lesson to t!e o++osing +artyBut. +ositive as+e(ts of ?ili+ino (ulture t!at may tend to mitigate t!e ?ili+ino +ro+ensity to litigate dis+utes: 1) Iamag*anak net ork ((lose family ties) :) $ulungan (mutual aid) 3) Bigayan (give and take) ;) #alabra de "onor (Dord of "onor) <) Bayani!an ((oo+erative endeavor) 4) "iya (s!ame of doing somet!ing rong) 8) Utang na loob (re(ognition of a debt or obligation) H) #aggalang (res+e(t or !onor) 7) Iom+adre (godfat!er system) 1B))elikadesa (/Being +ro+er1) $!e Iatarungan #ambarangay as seen by legislators as a means to de(ongest t!e (ourts' do(kets. by en(ouraging t!e settlement of minor (ases at t!e barangay level. !i(! ill in turn allo t!e (ourts to s+eed u+ t!e ad0udi(ation of already

(- Automati( riting*ask inner self for rea(tions of t!ose +ossibilities d- Mental 2maging*ask inner e>+ert for advi(e in making (!oi(esLitigation is !at many ?ili+ino La yers do best- Students of la are trained to t!ink like la yers. but t!ey are not +re+ared to deal it! t!ey s!ould do best: solve t!eir (lient +roblems and resolve t!eir dis+utes it! t!e least amount of time and e>+ense$!e key to de(ongest t!e (ourts is t!at students s!ould be trained to be sensitive to t!eir (lient's is!es to settle t!eir (onfli(t or dis+ute s iftly and it!out e>+ense to (ourt trials?ili+ino Confli(t Management System

<

+ending (ases- $!is again relates to t!e a((ess*to*0usti(e +roblem in t!e (ountry$o ensure t!at t!e goal is met. t!e Lo(al @overnment Code makes I# mediation and (on(iliation a (ondition +re(edent to t!e filing of (ases in (ourt- 8 $!oug! non* (om+lian(e does not result in 0urisdi(tional defe(t t!ereby rendering t!e (ourt +ro(eedings void ab initio. su(! failure. if seasonably raised. makes t!e (ase vulnerable to a motion to dismiss on t!e ground of +rematurity (@ar(es v- CA. 14: SC&A <B;)- ($AI%= ?&5M A= 5=L2=% #&2M%& 5? $"% IA$A&U=@A= #AMBA&A=@AF #ublis!ed by t!e U#* College of La ) $y+es of Arbitration in t!e #!ili++ines: 1) Labor Arbitration $!e Labor Code of t!e #!ili++ines makes arbitration mandatory in (ases involving t!e inter+retation and im+lementation of (olle(tive bargaining agreements (CBA) and t!e inter+retation or enfor(ement of (om+any +ersonnel +oli(ies- $!e original and e>(lusive 0urisdi(tion of !i(! falls it! t!e Eoluntary Arbitrators- (Sanyo v- Cani,ares) :) Constru(tion Arbitration $!e (reation of t!e Constru(tion 2ndustry Arbitration Commission (C2AC) us!ered t!e birt! of arbitration in t!e (onstru(tion industry-(%5- 1BBH) #rivate or (onstru(tion submitted@overnment*entered (ontra(ts (an be

#!ili++ines. t!e +arties must first agree to do so before t!e C2AC (an a(Cuire 0urisdi(tion to arbitrate t!e matter3) Consumer Arbitration Consumer A(t of t!e #!ili++ines (&A no- 837;) +rovides for t!e (reation of a (onsumer arbitration +rogram to !andle (onsumer (om+laints- $!ey !ave original and e>(lusive 0urisdi(tion to mediate. (on(iliate !ear and ad0udi(ate all (onsumer (om+laints >>>;) Matrimonial Mediation )is+utes bet een (ou+les t!at are (ivil in nature may be t!e sub0e(t of (ourt*referred mediation. sub0e(t to t!e limitations of Art- :B3< of t!e Civil Code$!e ff- dis+utes (om+romised: may not be

a) (ivil status of +ersons b) validity of marriage or legal se+aration () any ground for legal se+aration d) future su++ort e) future legitime f) 0urisdi(tion of t!e (ourts-

<) Cor+orate Arbitration Cor+oration Code +rovides for t!e me(!anism to resolve (or+orate dis+utes$!e S%C (an e>er(ise its +o er to arbitrate t!e dis+ute u+on ritten +etition by any sto(k!older- (read more about +o ers of t!e S%C) 4) #artners!i+ Arbitration

$es(o v- Eera*D!ile it is true t!at t!e C2AC s!all !ave original and e>(lusive 0urisdi(tion over dis+utes (onne(ted it! (ontra(ts entered into by +arties involved in t!e (onstru(tion industry in t!e

$!e CC states t!at is beyond t!e aut!ority of one or more but less t!an all t!e +artners to enter into a (om+romise or submit to arbitration a +artners!i+ (laim or liability- D!en it (omes to A)&. unanimous (onsent of +artners is needed to (arry out t!e +lant to resolve +artners!i+ dis+utes it!out a (ourt trial8) Administrative Arbitration )o(trine of =on*e>!austion administrative remedies H) %nvironmental Mediation 7) %>e(utive Arbitration 1B)?oreign Arbitration 11)Banking Arbitration 1:)Mining Arbitration 13)Maritime Arbitration 1;)2nsuran(e Arbitration 1<)2# Arbitration 14)Se(urities Arbitration Si>*Ste+ Stru(ture mediation meeting (2*"*2*M*2*S) 1) 2ntrodu(tion and agreeing of ground rules :) "earing !at !as !a++ened or summari,ing t!e fa(ts 3) 2dentifying t!e issues ;) Mutual understanding (ommuni(ating feelings and of a fa(e*to*fa(e of

Causes of Court )elays (Justi(e Myrna )imaranan Eidal) 1) t!e misuse of t!e due +ro(ess and t!e abuse of legal te(!ni(alities9 :) t!e intervention of +oliti(al +ressure in (ourt (ases9 3) t!e s!eer eig!t of (ourt litigations arising from develo+ment and gro t!9 ;) t!e dilatory ta(ti(s of la yers9 <) negle(t and la>ity on t!e +art of 0udges9 and 4) Court va(an(ies-

Definition of Terms: Alternative )is+ute &esolution 2t is defined as any +ro(ess or +ro(edure used to resolve a dis+ute or (ontroversy. ot!er t!an by ad0udi(ation of a +residing 0udge of a (ourt or an offi(er of a government agen(y. in !i(! a neutral t!ird +arty +arti(i+ates to assist in t!e resolution of issues- 2t in(ludes arbitration. mediation or (on(iliation. mini*trial. early neutral evaluation. or any (ombination t!ereofArbitration A voluntary dis+ute resolution +ro(ess in !i(! one or more arbitrators. a++ointed in a((ordan(e it! t!e agreement of t!e +arties resolve a dis+ute by rendering an a ard- 2t is t!e referen(e by mutual agreement or (onsent of t!e +arties of a (ontroversy or dis+ute to sele(ted +ersons for an informal !earing and e>tra*0udi(ial determination and resolution- $!e !earing is usually !eld in +rivate and t!e de(ision of t!e +ersons

<) 2deal storming of a inG in solution 4) Signing of voluntary agreement-

sele(ted ill be a substitute for a (ourt 0udgment- $!is avoids t!e formalities. delay and e>+enses of ordinary litigationMediation A dis+ute resolution +ro(edure in !i(! an im+artial t!ird +arty. mutually (!osen by t!e +arties. a(ts as t!e referee to !el+ t!e (ontending +arties settle t!eir dis+ute- $!e mediator. unlike t!e arbitrator. !as no aut!ority to make t!e +arties rea(! an agreement- "e serves as a (larifier and fa(ilitator it!out di(tating settlement- $!e term mediation used under A)& La in(ludes (on(iliationMini*trial A dis+ute resolution met!od in !i(! t!e merits of a (ase are argued before a +anel (reated by agreement of t!e +arties (om+rising senior de(ision makers it! or it!out t!e +resen(e of a neutral t!ird +erson after !i(! t!e +arties seek a negotiated settlement%arly neutral evaluation An alternative dis+ute resolution +ro(ess !ereby +arties and t!eir la yers are broug!t toget!er early in a +re*trial +!ase to +resent summaries of t!eir (ases and re(eive a non*binding assessment by an e>+erien(ed. neutral +erson it! e>+ertise in t!e sub0e(t of t!e dis+ute-

arbitration to settle issues t!at remain unresolved by t!e mediatorClass A(tion Administration Met!od of resolving t!e (laims of a !uge (lass of (laimants it! t!e least +ossible litigation e>+enditures and (ourt (ost t!roug! an administrative agen(y in (!arge of maintaining and tra(king statisti(al days as ell as overseeing restitution +ayments. a++ointed by t!e (ourt or (!osen by t!e +arties design a set of (laims +ro(eduresEoluntary Settlement Conferen(e 0ust like mediation it is a non binding !earing9 t!e neutral +arty is allo ed to e>+ress !is o+inions and vie s about t!e (ase and ill be obligated to formulate an advisory o+inion to be submitted to t!e +arties for revie and a++roval-

Mass $ort A)& #ro0e(ts (Manville #ersonal 2n0ury Settlement $rust and A-" &obbins bankru+t(y for (laims of asbestos sufferers and for (laims related to t!e )alkon s!ield. res+e(tively) &eferee or /&ent a Judge1 a +ra(ti(ing attorney or a retired 0udge usually a(ts as a referee !o (ondu(ts a /trial1 t!at in(or+orates t!e formalities of a regular (ourt trial. (om+lete it! a (ourt re+orter and t!e observan(e of t!e stri(t rules of eviden(eMo(k*Jury trial a /mo(k 0ury (ontra(t1 sets fort! all t!e +rovisions government t!e dis+ute resolution +ro(ess (!osen by t!em. in(luding !o t!e mo(k 0ury +ro(eedings ill be (ondu(ted5mbudsman

Combination of Alternative )is+ute &esolution A +arti(ular alternative dis+ute resolution may be (ombined it! t!e ot!er ty+es of alternative dis+ute resolutions- $!e most (ommon is t!e mediation*arbitration (Med*Arb)- 2n t!is kind of (ombination. +arties first +ro(eed to mediation to define t!e dis+ute and settle as many issues as +ossible. and t!en t!ey engage in

!e is a fa(t finder or referee !ired by businesses to deal it! dis+utes inside t!e organi,ation- $!e ob0e(tive is to solve +roblems and dis+utes Cui(kly and informally by !earing and investigating dis+utes bet een orkers#ro(ess Consultation t!is is used if t!ere is a long*standing relations!i+ bet een t!e +arties and t!ey en(ounter +roblems in resolving t!e dis+utes- #ro(ess (onsultants a(t as (ounselors !o fo(us on t!e +ro(ess of negotiation. assisting t!e +arties in en!an(ing or restoring (ommuni(ation lines -

Court*Anne>ed Mediation means any mediation +ro(ess (ondu(ted under t!e aus+i(es of t!e (ourt. after su(! (ourt !as a(Cuired 0urisdi(tion of t!e dis+ute Court*&eferred Mediation means mediation ordered by a (ourt to be (ondu(ted in a((ordan(e it! t!e Agreement of t!e #arties !en as a(tion is +rematurely (ommen(ed in violation of su(! agreement-

C!a+ter E $!e Mitigation of Litigation: A Cornu(o+ia of =on*litigative #ro(esses

issues- $!is is ot!er ise kno n as /rent*a* 0udge1Besides. mini*trial is a voluntary. (onfidential and non*binding +ro(edure t!at effe(ts a s+eedy. (ost*effe(tive resolution of (or+orate (onfli(t- La yers +resent summaries of t!eir (ases to (!ief e>e(utives or ot!er key de(ision*makers re+resenting bot! (lients- (Linda Singer) Mini"trial contract $!is is signed by t!e +arties t!at (ontains +rovisions governing t!e (ondu(t of dis(overy. !o !earing ill be !andled and a fe more im+ortant sti+ulations#lass action administration is a sensible a++roa(! at dis+ute resolution is to !ave an administrative agen(y. t!at is in (!arge of maintaining and tra(king statisti(al data as ell as overseeing restitution +ayments. a++ointed by t!e (ourt or (!osen by t!e +arties design a set of (laims +ro(edures and forms t!at ill be sent out to all t!e (laimants$oluntary settlement conference is !ere t!e neutral +arty. unlike mediation. is allo ed to e>+ress !is o+inions and vie s about t!e (ase and ill be obligated to formulate an advisory o+inion to be submitted to t!e +arties for revie and a++roval#onciliation uses a neutral t!ird +arty to (larify issues in dis+ute so t!at t!e +arties (on(erned may t!emselves arrive at a mutually a((e+table agreementMass tort ADR pro%ects Rent"A"Jud&e in(or+orates t!e formalities of a regular (ourt trial. (om+lete it! a (ourt re+orter and t!e observan(e of t!e stri(t rule of eviden(e but t!e +arties may agree to modify or disregard most formal rules of +ro(edure. eviden(e and +leading it! some limitationsMoc' Jury Trial

Motivating ?a(tors t!at (ontribute to t!e rise in demand A)& +ro(esses: 1) Avoidan(e of !ig! e>+ense of litigation :) ?ear of la suit ill result in an out(ome far more adverse t!an reasonably anti(i+ated 3) =eed to return orkers involved in t!e la suit to more +rodu(tive a(tivities ;) Dis! to +reserve and re*establis! t!e business or inter*+ersonal relations!i+ t!at as tem+orarily disturbed by t!e (onfli(tMed/Ar (Already defined in t!is revie er) $!e +arties go t!roug! a +!ase !ere +arties in (rafting a (om+romise agreement only if t!is goes do n in flames. t!e mediator ill (!ange (olors*may not render a binding a ard as an arbitrator +ursuant to t!e agreement- "o ever. Se(- :B of &A H84 states. /=o Arbitrator s!all a(t as a mediator in any +ro(eedings in !i(! !e is a(ting as an arbitrator9>>>1 is sub0e(t to stri(t inter+retation!acilitation is a less a(tive form of mediation- $!e neutral t!ird +arty or fa(ilitator a(ts as a moderator in large meetings. a(ting as traffi( +oli(e offi(er dire(ting t!e flo of traffi( in t!e meeting and seeing to it t!at everyone says !is +ie(e during t!e forumMini"trials is not a trial but a rational and voluntary manner in stru(turing a settlement of dis+utes bet een t o big (om+anies t!at are at logger!eads over sti(ky business

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(m usdman Process consultation t!e +ro(ess (onsultants (#C) differs from t!e meditator in t!at t!ere is no dis(ussion of t!e s+e(ifi( issues or any attem+t to solve t!em- $!us. +ro(ess (onsultants are often more like (ounselors !o !el+ +arties to get along better so t!at t!ey (an engage in better negotiation and +roblem*solvingADR processes in )* +overnment A&encies ,nternational #ommercial Ar itration *mall claims courts -ei&h orhood dispute centers Re&ulatory ne&otiation #hapter $, The sport of -onadversarial lawyers

=egotiation is a +roblem solving o+eration(&oman(e Languages means /to do business1) La yers !ave a role to +lay in at least t o (ru(ial negotiation s(!emes: 1) )is+ute or litigation settlement :) $ransa(tion*+lanning to +reventive la negotiations Basi( =egotiation $a(ti(s 1) $!e in(e Dell*timed flin(! at t!e e>a(t moment !en t!e ot!er +arty announ(es !is terms:) Silen(e Staying absolutely Cuiet after making your offer or !en t!e ot!er +arty says somet!ing t!at you find disagreeable 3) @ood guyGbad*guy Dorking it! an a(tual +artner to make it a++ear to t!e ot!er +arty t!at a((e+ting t!e offer of t!e /good guy1 is a mu(! better alternative t!an giving in t!e !ars!er terms /bad guy1 ;) Limited aut!ority Buying time to obtain more aut!ority from an imaginary +rin(i+al or a real +erson it! greater dis(retion <) &ed "erring Creating distra(tion to muddle t!e real issues 4) $rial Balloon &aising Cuestions designed to +eek into t!e ot!er +arty's +osition it!out revealing your true ob0e(tives 8) Lo balling*agreeing to t!e offer made by t!e ot!er +art and t!en start

Leig! Steinberg. /%ffe(tive negotiation is about e>!austive +re+aration. utter (larity. !eartfelt (ommuni(ation. and a sin(ere. demonstrated desire to fully understand not 0ust your o n needs but t!e needs of ot!er +arty->>>1 Jesus and So(rates ere t o of t!e best negotiators of !istory- 5ne is a form of syllogism. t!e ot!er in t!e form of +arables&o(k and a "ard #la(e* $!e ro(k is litigation. !i(! as a means of resolving a dis+ute is frustrating. time (omsuiming. e>+ensive and full of fri(tion- $!e !ard +la(e is negotiation. !i(! (an often +rove unavailing as a means of rea(!ing a((ord bet een t o dis+utants. ea(! of !ome !as strong feelings about t!e matter(?reund. Smart =egotiating. 177:) L2$2*@5$A$25= (Mar( )einer) Litigation is often used for leveraging- A la suit is filed and +us!ed to t!e limit to for(e a favorable settlement agreement-

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(!i++ing a ay at t!e terms of t!e original offer until t!e offer !as been severely altered H) $!e Bait and s it(!*advertising one +rodu(t to bring +eo+le inside t!e store and finding e>(uses to e>+lain t!e unavailability of t!e advertised +rodu(t t!en Cui(kly suggest t!at a different +rodu(t be boug!t instead7) 5utrageous be!avior*e>!ibiting so(ially una((e+table demeanor to rattle t!e ot!er +arty 1B)Dritten ork*+resenting ad!esion (ontra(ts to dis(ourage Cuestion about t!e deal 11)$!e vise*a++lying verbal +ressure to for(e t!e ot!er +arty /$o do better1 t!an !at is being offered and to gain (on(essions1:)$rade off*s+litting t!e differen(e and seeking t!e mid+oint 13)=ibble* aiting for t!e ma0or terms of t!e deal to be settled t!en asking for t!e /minor1 (on(essions to be in(luded in t!e deal 1;)?unny Money*making mat!emati(al (al(ulations and dividing t!e +ayments over a +eriod of time to (onvey t!e im+ression t!at t!e ot!er +arty is getting a /good deal1$ o ma0or ty+es of unassisted negotiations: 1) Combative =egotiator* !o ill em+!asi,e only !is o n gains at t!e e>+ense of t!e ot!er and em+loy !ard line ta(ti(s. su(! as e>aggerating (laims or even t!reatening to abandon t!e dis(ussion if !e does not get !is ay:) Con(iliatory negotiator* !o ill assume t!e role of a /+roblem solver1 rat!er t!an an intimidatorClass of negotiations

1) #osition*based negotiations often involves !ard*ball met!ods be(ause it is +remised on t!e +resumed su+eriority of one's +osition:) 2nterest*based negotiation is mu(! more (andid and amiable te(!niCue t!at involves t!e illing dis(losure of all germane information to t!e ot!er +arty so as to e>+lore all avenues of satisfying t!e needs and interests of t!e ot!er side of t!e least +ossible (ost and at t!e s!ortest +ossible timeLeonard Ioren and #eter @oodman's dead*lo(k breaking te(!niCues (1771) 1) Be +ositive and don't be +ut off by t!e good ord /no1 :) Agree on easier terms first and ski+ over t!e +oints t!at are bogging you do n and (ome ba(k to t!em late 3) %m+!asi,e s!ared goals. get ba(k to (ommon ground and start building u+ again ;) &edu(e (om+le>ity. break do n (om+li(ated negotiations into +ie(es and solve ea(! +ie(e one at a time <) Brainstorm it! your o++onent generate various alternatives to

4) ?ine tune your agreement so t!at t!ere is somet!ing t!at bot! of you (an find a((e+table 8) #assing ritten +ro+osals ba(k and fort! for (omment H) Calling a time out !en t!ings get roug! and not going your ay-

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