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ALTERNATIVE DISPUTE RESOLUTION
OVERVIEW
Professor John Barkai
William S. Richardson School of Law
University of Hawaii at Manoa
2515 Dole Street Honolulu, Hawaii 96822
Phone (808) 956-6546 Fax (808) 956-5569
E-mail: barkai@hawaii.edu
http://www2.hawaii.edu/~barkai
Common Forms
of Dispute Resolution
Negotiation:
discussion for the purpose of
settling differences
Mediation:
Conciliation:
a neutral third party assists the
parties to reach a negotiated
settlement but has no power to
decide the issues in dispute.
Arbitration:
a neutral third party is given the
power to decide the issues in
conflict. The arbitrator decides
after hearing arguments and
reviewing evidence.
Trial in Court:
evidence is presented to a judge or
jury for a decision under formal
Professor John Barkai
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POSITIONS
Positions are "what" the negotiators say they want. They are really solutions
which have been proposed by the negotiators. Positions are based upon the
interests of the parties; interests are usually not disclosed, at least not in
competitive negotiations. In most negotiations, people take, and then give up, a
series of positions. Behind every position lie many interests.
INTERESTS
Interests are "why" the negotiators want the positions they take. Interests lie
behind the positions of the negotiators. Interests represent the basic needs to be
met. Money and price are not interests in themselves. Money represents
purchasing power, the ability to acquire other needs, status, or power itself.
Understanding interests is the key to understanding "win-win" negotiating. In
many negotiations the interests are never explicitly discussed. In fact, interests
are usually kept secret. Successful "win-win" negotiating requires finding a way
to disclose interests without being taken advantage of.
BATNA
BATNA stands for the Best Alternative to a Negotiated Agreement. It represents
the best result that a negotiator can get somewhere else if an agreement cannot
be reached with this party. In other words, a BATNA is the alternative that the
party will select if they must walk away from this negotiation. It is an alternative
solution. If the negotiation is a DEAL, the BATNA is to walk away to another
party who can offer you a better deal. If, however, the negotiation is over a
lawsuit, your BATNA is to go to court.
BOTTOM LINE
The bottom line is the position at which the negotiator will walk away from the
negotiation. It is also known as a reservation price. If the negotiator cannot get
at least their bottom line in the negotiation, they will go somewhere else.
ZONE OF AGREEMENT
The Zone of Agreement represents the difference between the bottom lines of
the parties. If there is no overlap in the bottom lines of the parties, no
agreement is possible.
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