Dispute Resolution

Dispute resolution is the process of resolving disputes between parties.Methods of dispute resolution include:

1. Lawsuits (litigation)
2. Arbitration
3. Mediation
4. Conciliation
5. Negotiation

One could theoretically include violence or even war as part of this spectrum, but dispute resolution practitioners do not usually do so; violence rarely ends disputes effectively, and indeed, often only escalates them. Some individuals, notably Joseph Stalin, have stated that all problems emanate from man, and absent man, no problems ensue. Hence, violence could theoretically end disputes, but alongside it, life.

Dispute Resolution Process

Dispute resolution processes fall into two major types:

1. Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator determines the outcome.
2. Consensual processes, such as mediation, conciliation, or negotiation, in which the parties attempt to reach agreement.

Not all disputes, even those in which skilled intervention occurs, end in resolution. Such intractable disputes form a special area in dispute resolution studies.

Judicial Dispute Resolution

A competent and effective judge, arbitrator or mediator can greatly aid the proper functioning of the dispute resolution process. In civil law systems judges are jurists who are trained in investigation techniques, the process of determining the veracity of evidence and the inquisitorial system of adjudication. In the United States and other common law countries, judges are often experienced trial lawyers who have litigated many cases over many years before their appointment or election to the judiciary. Retired judges or experienced private lawyers often become arbitrators or mediators, but trained and qualified non-legal dispute resolution specialists form a growing body. In the United States of America, many states now have mediation or other ADR programs annexed to the courts, to facilitate settlement of lawsuits.

Extrajudicial Dispute Resolution

Some use the term dispute resolution to refer only to alternative dispute resolution (ADR), that is, extrajudicial processes such as arbitration and mediation used to resolve conflict and potential conflict between and among individuals, business entities, governmental agencies, and (in the public international law context) states. ADR generally depends on agreement by the parties to use ADR processes, either before or after a dispute has arisen. ADR has experienced steadily increasing acceptance and utilization because of a perception of greater flexibility, costs below those of traditional litigation, and speedy resolution of disputes, among other perceived advantages. However, some have criticized these methods as taking away the right to seek redress of grievances in the courts, suggesting that extrajudicial dispute resolution may not offer the fairest way for parties not in an equal bargaining relationship, for example in a dispute between a consumer and a large corporation. In addition, in some circumstances, arbitration and other ADR processes may become as expensive as litigation or more so.

Online Dispute Resolution

Online dispute resolution (ODR) is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of Alternative dispute resolution (ADR). However, ODR can also augment these traditional means of resolving disputes by applying innovative techniques and online technologies to the process.  The most common typology of methods of ODR consists of:

1. Automated Negotiation
2. Assisted Negotiation
3. Online Mediation
4. Online Arbitration

Automated Negotiation relates to those methods in which the technology takes over apects of a negotiation. Most of the ODR services in this area are so-called 'blind-bidding' services. A blind bidding service is an auction mechanism where some or all information about the players' bids is hidden. If the bids of both parties come within a predetermined range the technology automatically settles the dispute.

In Assisted Negotiation the technology assists the negotiation process between the parties. The technology has a similar role as the mediator in a mediation. The role of the technology may be to provide a certain process and/or to provide the parties with specific (evaluative) advice. The online equivalents of mediation and arbitration are very similar to these offline dispute resolution techniques. Most ODR providers offer services that use two or more of the methods mentioned above.

Alternative Dispute Resolution

Alternative dispute resolution (ADR) is usually considered to be alternative to litigation.   ADR includes dispute resolution processes and techniques that fall outside of the government judicial process. Despite historic resistance to ADR by both parties and their advocates, ADR has gained widespread acceptance among both the general public and the legal profession in recent years.  In fact, some courts now require some parties to resort to ADR of some type, usually mediation, before permitting the parties' cases to be tried. The rising popularity of ADR can be explained by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their dispute.  ADR is generally classified into at least three subtypes: negotiation, mediation, and arbitration.   Sometimes a fourth type, conciliation, is included as well, but it is generally regarded as a form of mediation.

In negotiation, participation is voluntary and there is no third party who facilitates the resolution process or imposes a resolution.  In mediation, there is a third party, a mediator, who facilitates the resolution process (and may even suggest a resolution, typically known as a "mediator's proposal"), but does not impose a resolution on the parties. In some countries (for example, the United Kingdom), ADR is synonymous with what is generally referred to as mediation in other countries.  In arbitration, participation is typically voluntary, and there is a third party who, as a private judge, imposes a resolution. Arbitrations often occur because parties to contracts agree that any future dispute concerning the agreement will be resolved by arbitration.

ADR can increasingly be conducted online or by using technology. This branch of dispute resolution is known as online dispute resolution (ODR). It should be noted, however, that ODR services can be provided by government entities, and as such may form part of the litigation process. Moreover, they can be provided on a global scale, where no effective domestic remedies are available to disputing parties, as in the case of the UDRP and domain name disputes. In this respect, ODR might not satisfy the "alternative" element of ADR.

Negotiation

Broadly speaking, negotiation is an interaction of influences. Such interactions, for example, include the process of resolving disputes, agreeing upon courses of action, bargaining for individual or collective advantage, or crafting outcomes to satisfy various interests. Negotiation is thus a form of alternative dispute resolution. 

Negotiation involves two basic elements: the process and the substance. The process refers to how the parties negotiate: the context of the negotiations, the parties to the negotiations, the relationships among these parties, the communication between these parties, the tactics used by the parties, and the sequence and stages in which all of these play out. The substance, however, refers to what the parties negotiate over: the agenda, the issues, the options, and the agreement(s) reached at the end.

Skilled negotiators may use a variety of tactics ranging from a straight forward presentation of demands or setting of preconditions to more deceptive approaches such as cherry picking. Intimidation and salami tactics may also play a part in swaying the outcome of negotiations.

Approaches To Negotiation

Given the above definition, negotiation occurs in business, non-profit organizations, government branches, legal proceedings, among nations and in personal situations such as marriage, divorce and parenting. See also negotiation theory.

Advocacy Approach

In the advocacy approach, a skilled negotiator usually serves as advocate for one party to the negotiation and attempts to obtain the most favorable outcomes possible for that party. In this process the negotiator attempts to determine the minimum outcome(s) the other party is (or parties are) willing to accept, then adjusts their demands accordingly. A "successful" negotiation in the advocacy approach is when the negotiator is able to obtain all or most of the outcomes their party desires, but without driving the other party to permanently break off negotiations, unless the BATNA  is acceptable.

Win-Lose Approach

Traditional negotiating is sometimes called win-lose because of the assumption of a fixed "pie", that one person's gain results in another person's loss. This is only true, however, if only a single issue needs to be resolved, such as a price in a simple sales negotiation. If multiple issues are discussed, differences in the parties' preferences make win-win negotiation possible. For example, in a labor negotiation, the union might prefer job security over wage gains. If the employers have opposite preferences, a trade is possible that is beneficial to both parties. Such a negotiation is therefore not an adversarial zero-sum game.

Win-Win Approach

During the early part of the twentieth century, academics such as Mary Parker Follett developed ideas suggesting that agreement often can be reached if parties look not at their stated positions but rather at their underlying interests and requirements. During the 1960s, Gerard I. Nierenberg recognized the role of negotiation in resolving disputes in personal, business and international relations. He published The Art of Negotiating, where he states that the philosophies of the negotiators determine the direction a negotiation takes. His Everybody Wins philosophy assures that all parties benefit from the negotiation process which also produces more successful outcomes than the adversarial “winner takes all” approach.

In the 1970s, practitioners and researchers began to develop win-win approaches to negotiation. Getting to YES was published by Roger Fisher and William Ury as part of the Harvard negotiation project. The book's approach, referred to as Principled Negotiation, is also sometimes called mutual gains bargaining. The mutual gains approach has been effectively applied in environmental situations (see Lawrence Susskind and Adil Najam) as well as labor relations where the parties (e.g. management and a labor union) frame the negotiation as "problem solving".

Emotions In Negotiation

Emotions play an important part in the negotiation process, although it is only in recent years that their effect is being studied. Emotions have the potential to play either a positive or negative role in negotiation. During negotiations, the decision as to whether or not settle, rests in part on emotional factors. Negative emotions can cause intense and even irrational behavior, and can cause conflicts to escalate and negotiations to break down, while positive emotions facilitate reaching an agreement and help to maximize joint gains.

Affect effect: Dispositional affect effect the various stages of the negotiation process: which strategies are planed to be used, which strategies are actually chosen, the way the other party and its intentions are perceived, the willingness to reach an agreement and the final outcomes. Positive affectivity (PA) and negative affectivity (NA) of one or more of the negotiating sides can lead to very different outcomes.

Positive Affect in Negotiation

Even before the negotiation process starts, people in a positive mood have more confidence, and higher tendencies to plan to use a cooperative strategy. During the negotiation, negotiators who are in a positive mood tend to enjoy the interaction more, show less contentious behavior, use less aggressive tactics and more cooperative strategies. This in turn increases the likelihood that parties will reach their instrumental goals, and enhance the ability to find integrative gains. Indeed, compared with negotiators with negative or natural affectivity, negotiators with positive affectivity reached more agreements and tended to honor those agreements more. Those favorable outcomes are due to better decision making processes, such as flexible thinking, creative problem solving, respect for others' perspectives, willingness to take risks and higher confidence. Post negotiation positive affect has beneficial consequences as well. It increases satisfaction with achieved outcome and influences one’s desire for future interactions. The PA aroused by reaching an agreement facilitates the dyadic relationship, which result in affective commitment that sets the stage for subsequent interactions.

PA also has it’s drawbacks: it distorts perception of self performance, such that performance is judged to be relatively better than it actually is.  Thus, studies involving self reports on achieved outcomes might be biased.

Negative Affect in Negotiation

Negative affect has detrimental effects on various stages in the negotiation process. Although various negative emotions affect negotiation outcomes, by far the most researched is anger. Angry negotiators plan to use more competitive strategies and to cooperate less, even before the negotiation starts. These competitive strategies are related to reduced joint outcomes. During negotiations, anger disrupts the process by reducing the level of trust, clouding parties' judgment, narrowing parties' focus of attention and changing their central goal from reaching agreement to retaliating against the other side. Angry negotiators pay less attention to opponent’s interests and are less accurate in judging her interests, thus achieve lower joint gains. Moreover, because anger makes negotiators more self-centered in their preferences, it increases the likelihood that they will reject profitable offers. Anger doesn’t help in achieving negotiation goals either: it reduces joint gains and does not help to boost personal gains, as angry negotiators don’t succeed in claiming more for themselves. Moreover, negative emotions lead to acceptance of settlements that are not in the positive utility function but rather have a negative utility. However, expression of negative emotions during negotiation can sometimes be beneficial: legitimately expressed anger can be an effective way to show one's commitment, sincerity, and needs. Moreover, although NA reduces gains in integrative tasks, it is a better strategy then PA in distributive tasks (such as zero-sum).

Best Alternative to Negotiated Agreement

In negotiation theory, the best alternative to a negotiated agreement or BATNA is the course of action that will be taken by a party if the current negotiations fail and an agreement cannot be reached.  If the current negotiations are giving you less value than your BATNA, there is no point in proceeding. Prior to the start of negotiations, the parties should have ascertained their own individual BATNAs.  It was developed by negotiation researchers Roger Fisher and Bill Ury of the Harvard Program on Negotiation (PON), in their series of books on Principled Negotiation that started with Getting to YES. Nobel Laureate John Forbes Nash has included such ideas in his early undergraduate research.

For example, if I have a written offer from a dealer to buy my car for $100 dollars, then my BATNA when dealing with other potential purchasers would be $100 since I can get $100 for my car even without reaching an agreement with such alternative purchaser.

A party should generally never accept a worse resolution than its BATNA. Care should be taken, however, to ensure that deals are accurately valued, taking into account all considerations (such as relationship value, time value of money, likelihood that the other party will live up to their side of the bargain, etc.) These other considerations are very difficult to value, since they are often based on uncertain considerations, rather than easily measurable and quantifiable factors.  Examples of other offers that might or might not be better than the BATNA in the example above might be:

An offer of $90 by a close relative (is the goodwill generated worth $10 or more?)

An offer of $125 in 45 days (what are the chances of this future commitment falling through, and would my prior BATNA ($100) still be available if it did?)

An offer from another dealer to offset $150 against the price of a new car (do I want to buy a new car right now, the offered car in particular? Also, is the probably minuscule reduction in monthly payments worth $100 to me today?)

BATNA is seen in negotiation fields as the single most important source of negotiation power. Negotiators don't use their BATNA merely as a safety net, but rather as a point of leverage in negotiations.

Consider the following business example: Company one can choose to buy from companies two, three and four - but companies two, three and four can only sell to company one. Company one can use their powerful BATNA position to leverage a better deal by playing companies two, three and four against each other. This is a common practice among purchasing and procurement managers in the business world.

Civil Litigation

A lawsuit is a civil action brought before a court in which the party commencing the action, the plaintiff, seeks a legal remedy. One or more defendants are required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act.  A declaratory judgment may be issued to prevent future legal disputes.

A lawsuit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations.  A lawsuit may also enable the government to be treated as if it were a private party in a civil case, as plaintiff or defendant regarding an injury, or may provide the government with a civil cause of action to enforce certain laws. The conduct of a lawsuit is called litigation.

Rules of Civil Procedure

Rules of civil procedure govern the conduct of a lawsuit in the common law adversarial system of dispute resolution. Procedural rules are additionally constrained/informed by separate statutory laws, case law, and constitutional provisions that define the rights of the parties to a lawsuit (see especially due process), though the rules will generally reflect this legal context on their face. The details of procedure will differ from jurisdiction to jurisdiction, and often from court to court within the same jurisdiction. The rules are very important for litigants to know, however, because they dictate the timing and progression of the lawsuit â€" what may be filed and when to get what result. Failure to comply with the procedural rules can result in serious limitations in conducting the trial or even dismissal of the lawsuit.

Though the majority of lawsuits are settled and never even get to trial, they can expand into a very complicated process. This is particularly true in federal systems, where a federal court may be applying state law (e.g., the Erie doctrine in the United States) or vice versa, or one state applying the law of another, and where it additionally may not be clear which level (or location) of court actually has jurisdiction over the claim or personal jurisdiction over the defendant. Domestic courts are also often called upon to apply foreign law, or to act upon foreign defendants, over whom they may not, as a practical matter, even have the ability to enforce a judgment if the defendant's assets are outside their reach.

Lawsuits become additionally complicated as more parties become involved (see joinder). Within a "single" lawsuit, there can be any number of claims and defenses (all based on numerous laws) between any number of plaintiffs or defendants, who each can bring any number of cross-claims and counterclaims against each other, and even bring additional parties into the suit on either side after it progresses. However, courts typically have some power to separate out claims and parties into separate suits if it is more efficient to do so, such as if there is not a sufficient overlap of factual issues between the various claims.

Cause of Action

In the law, a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue. The phrase is also used to reference the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

The defendant to a cause of action must file an "Answer" to the complaint in which the claims can be admitted, denied, or insufficient information to form a response. The answer may also contain counterclaims in which the "Counterclaim Plaintiff" states its own causes of action. Finally, the answer may contain affirmative defenses. Most defenses must be raised at the first possible opportunity either in the answer or by motion or are deemed waived. A few defenses, in particular a court's lack of subject matter jurisdiction, need not be plead and may be raised at any time.

Pleading

A pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer.   A complaint is the first pleading filed by a plaintiff which initiates a lawsuit.  A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief whereas a demurrer is a pleading filed by a defendant which challenges the legal sufficiency of a complaint and an answer is a pleading which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. A defendant may also file a cross-complaint as well as bringing other parties into a case by the process of impleader.Usually the pleadings are drafted by a lawyer, but in many courts persons can file papers and represent themselves, which is called appearing pro se.   Many courts have a pro se clerk to assist people without lawyers.

Complaint

A lawsuit begins in federal courts when a complaint is filed with the district court clerk. This complaint will state that one or more plaintiffs is seeking damages or equitable relief from one or more stated defendants, and will identify the legal and factual bases for doing so.  In the law, a cause of action is a recognized kind of legal claim that a plaintiff pleads or alleges in a complaint to start a lawsuit.  Usually a cause of action will be either a legal claim or a claim in equity.  Legal claims are usually those that are based on the laws of a particular jurisdiction.  Equity claims are those based on the common law interpretation of what is right and wrong and what would be needed to make everyone whole again. Examples are: breach of contract; torts such as invasion of privacy, fraud, slander, malpractice, intentional infliction of emotional distress; suits in equity such as unjust enrichment and quantum meruit.  A "cause of action" encompasses both the legal theory of what legal wrong the plaintiff claims to have suffered, and the remedy, which is the relief a court is asked to grant which is in the form of an "Order of the Court" instructing the defendant to do or not do something for the benefit of the plaintiff or an instruction in some cases to the plaintiff to do or not do something for the benefit of the defendant.

Service of Process

The clerk of court then issues a summons, or serves process, upon the defendants, together with a copy of the complaint. This service notifies the defendants that they are being sued and that they have a specific time limit to file a response. By providing a copy of the complaint, the service also notifies the defendants of the nature of the claims. Once the defendants are served with the summons and complaint, they have a time limit to file an answer identifying their defenses to the plaintiff's claims, including any challenges to the court's jurisdiction, and any counterclaims they wish to assert against the plaintiff.

In many state courts, a lawsuit begins when one or more plaintiffs properly serve a summons and complaint upon the defendant(s). In these states, the plaintiffs need not file the complaint with the district court clerk to commence the lawsuit. As in federal court, the defendant(s) will have a specific time limit during which they may file their answer.

Answer

If the defendant chooses to file an answer within the time permitted, he must respond to each of the plaintiffs' allegations by admitting the allegation, denying it, or pleading a lack of sufficient information to admit or deny the allegation. At the time he files an answer, the defendant will also raise all "affirmative" defenses he may have. He may also assert any counterclaims for damages or equitable relief against the plaintiff, and in the case of "compulsory counterclaims," must do so or risk having the counterclaim barred in any subsequent proceeding. The defendant may also file a "third party complaint" in which he seeks to join another party or parties in the action if he believes those parties may be liable for some or all of the plaintiff's damages. Filing an answer "joins the cause" and moves the case into the pre-trial phase.

Motion To Dismiss

Instead of filing an answer within the time specified in the summons, the defendant can choose to dispute the validity of the complaint by filing one or more motions to dismiss. The motion must be filed within the time period specified in the summons for an answer. If all such motions are denied by the trial court, and the defendant loses on all appeals from such denials (if that option is available), then the defendant must file an answer.

Discovery

The early stages of the lawsuit may involve discovery, which is the ordered exchange of evidence and statements between the parties based on what they each expect to argue during the actual trial.  Discovery is meant to eliminate surprises and clarify what the lawsuit is about, and perhaps to make a party realize they should settle or drop the claim, all before wasting court resources.  At this point the parties may also engage in pretrial motion filing in order to exclude or include particular legal or factual issues before trial, by blocking the other party from presenting a particular witness or arguing a particular legal theory.

At the close of discovery, the parties may pick a jury and then have a trial by jury. Or, the case may proceed as a bench trial heard only by the judge, if the parties waive a jury trial, or if the right to a jury trial is not guaranteed for their particular claim (such as those under equity in the U.S.) or for any lawsuits within their jurisdiction.

Trial & Judgment

The lawsuit may then proceed similarly to a criminal trial, with each side presenting witnesses and submitting evidence, at the close of which the judge or jury renders their decision. Generally speaking, the plaintiff has the burden of proof in making his claims, which means that it is up to him to produce enough evidence to persuade the judge or jury that his claim should succeed. The defendant may have the burden of proof on other issues, however, such as affirmative defenses.

There are numerous motions that either party can file throughout the lawsuit to terminate it "prematurely" before submission to the judge or jury for final consideration. These motions attempt to persuade the judge, through legal argument and sometimes accompanying evidence, that because there is no reasonable way that the other party could legally win, there is no sense in continuing with the trial. Motions for summary judgment, for example, can usually be brought before, after, or during the actual presentation of the case. Motions can also be brought after the close of a trial to undo a jury verdict that is contrary to law or against the weight of the evidence, or to convince the judge that he should change his decision or grant a new trial.

Also, at any time during this process from the filing of the complaint to the final judgment, the plaintiff may withdraw his complaint and end the whole matter, or the defendant may agree to a settlement, which involves a negotiated award followed also by the plaintiff withdrawing his complaint and the settlement entered into the court record.

Enforcement

When a final judgment is entered, the plaintiff will likely be barred under res judicata from trying to bring the same or similar claim again against that defendant, or from relitigating any of the issues, even under different legal claims or theories. This prevents a new trial of the same case with a different result, or if the plaintiff won, a repeat trial that merely multiplies the judgment against the defendant.

If the judgment is for the plaintiff, then the defendant must comply under penalty of law with the judgment, which will usually be a monetary award. If the defendant fails to pay, the court has various powers to seize any of the defendant's assets located within its jurisdictionsuch as: liens; wage garnishment; bank account garnishment.

If all assets are located elsewhere, the plaintiff must file another suit in the appropriate court to seek enforcement of the other court's previous judgment. This can be a difficult task when crossing from a court in one state or nation to another, though courts tend to grant each other respect when there is not a clear legal rule to the contrary. A defendant who has no assets in any jurisdiction is said to be "judgment-proof."  The term is generally a colloquialism to describe an impecunious defendant.

Indigent judgment-proof defendants are no longer imprisoned; debtor's prisons have been outlawed by statute, constitutional amendment, or international human rights treaties in the vast majority of common law jurisdictions.

Recommended Reading

Getting To Yes

Getting to YES (ISBN 1-84413-146-7) is the reference book dealing about win-win negotiation. Written by Roger Fisher, professor and Director of the Harvard Negotiation Project; William Ury,negotiation and mediation consultant and director of the Negotiation Network at Harvard University & Associate Director of the Harvard Negotiation Project; and Bruce Patton, founder and director of Vantage Partners, Deputy Director of the Harvard Negotiation Project. This book has become a negotiation best seller with over 2 million copies sold in 20 different languages as of 1999.  It has also broadly influenced negotiation literature.  The book discusses not bargaining over positions; separating people from the problem; focusing on interests, not positions; inventing options for mutual gain; insisting on using objective criteria; and developing the best alternative to a negotiated agreement (BATNA) if the negotiation fails. Getting to YES also includes techniques to defuse "dirty tricks" from the other side. The book also recommends not to use these "dirty tricks" techniques as they are often used to win over the "adversary" and not to reach a negotiated deal.

Although the book explains how to reach a wise and fair agreement, it seems the low natural negotiation skill humans have inborn refrain from using efficiently these techniques. Beyond Reason: Using Emotions as You Negotiate and Getting past NO are follow ups to Getting to Yes and aim to explain how to handle difficult deals and tough emotions.  The authors recommend that both sides know and use these techniques to achieve a more efficient win win deal.

Getting Past No

Getting past NO Negotiating Your Way from Confrontation to Cooperation (ISBN 0-553-37131-2 ) is the reference book dealing about Win/Win in difficult negotiation. It is the sequel to Getting to YES. Written by William Ury (negotiation mediation consultant and director of the Negotiation Network at Harvard university & associate director of the Harvard Negotiation Project) revised edition 1993.  The book explain in details how to: have the joint problem-solving mentality together; break the five barriers to cooperation (your reaction, their emotion, their position, their dissatisfaction, their powe); prepare, prepare, prepare yourself by identifying/developing Interests of each side, options, and standards; BATNA - Best Alternative To a Negotiated Agreement; and what do you aspire to? what would you be content with? what could you live with?

Arbitration

Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. Arbitration in the United States and in other countries often includes alternative dispute resolution (ADR), a category that more commonly refers to mediation (a form of settlement negotiation facilitated by a neutral third party). It is more helpful, however, simply to classify arbitration as a form of binding dispute resolution, equivalent to litigation in the courts, and entirely distinct from the various forms of non-binding dispute resolution, such as negotiation, mediation, or non-binding determinations by experts.

Arbitration is today most commonly used for the resolution of commercial disputes, particularly in the context of international commercial transactions and sometimes used to enforce credit obligations. It is also used in some countries to resolve other types of disputes, such as labour disputes, consumer disputes or family disputes, and for the resolution of certain disputes between states and between investors and states.

Arbitrability

By their nature, the subject matter of some disputes are not capable of arbitration. Matters relating to crimes, status and family law are generally not considered to be arbitrable. However, most other disputes that involve private rights between two parties can be resolved using arbitration. In some disputes, parts of claims may be arbitrable and other parts not. For example, in a dispute over patent infringement, a determination of whether a patent has been infringed could be adjudicated upon by an arbitration tribunal, but the validity of a patent could not (as patents are subject to a system of public registration, an arbitral panel would have no power to order the relevant body to rectify any patent registration based upon its determination).

Advantages

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

1. when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed
   arbitration is often faster than litigation in court;
2. arbitration can be cheaper;
3. arbitral proceedings and an arbitral award are generally private;
4. the arbitral process enjoys a greater degree of flexibility than the courts;
5. because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce abroad than court judgments; and 
6. in most legal systems, there are limited avenues for appeal of an arbitral award, which can mean swifter enforcement and less scope for a party to delay matters.

Disadvantages

However, some of the disadvantages of arbitration can be that:

1. the parties need to pay for the arbitrators, which adds an additional layer of legal cost;
2. although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays;
3. in some legal systems, arbitral awards have fewer enforcement remedies than judgments;
4. arbitrators are generally unable to order interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of an award, such as the relocation of assets offshore;
5. rule of applicable law is not binding, and arbitrators not subject to overturn on appeal may be more likely to rule according to their personal ideals; and
6. large corporations may exert inappropriate influence in consumer disputes, pressuring mediators to decide in their favor or lose future business.

Types of Arbitration

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific "types" of arbitration procedure have developed, particularly in North America.

Judicial Arbitration is, usually, not arbitration at all, but merely a court process which refers to itself as arbitration, such as small claims arbitration before the County Courts in the United Kingdom.[3]
High-Low Arbitration, or Bracketed Arbitration, is an arbitration wherein the parties to the dispute agree in advance the limits within which the arbitral tribunal must render its award. It is only generally useful where liability is not in dispute, and the only issue between the party is the amount of compensation. If the award is lower than the agreed minimum, then the defendant only need pay the lower limit; if the award is higher than the agreed maximum, the claimant will receive the upper limit. If the award falls within the agreed range, then the parties are bound by the actual award amount. Practice varies as to whether the figures may or may not be revealed to the tribunal, or whether the tribunal is even advised of the parties' agreement.
Non-Binding Arbitration is a process which is conducted as if it were a conventional arbitration, except that the award issued by the tribunal is not binding on the parties, and they retain their rights to bring a claim before the courts or other arbitration tribunal; the award is in the form of an independent assessment of the merits of the case, designated to facilitate an out-of-court settlement.
Pendulum Arbitration refers to a determination in industrial disputes where an arbitrator has to resolve a claim between a trade union and management by making a determination of which of the two sides has the more reasonable position. The arbitrator must choose only between the two options, and cannot split the difference or select an alternative position. It was initiated in Chile in 1979 and has proved to be a very effective mechanism.
This form of arbitration is also known as Baseball Arbitration. It takes its name from a practice which arose in relation to salary arbitration in Major League Baseball.
Night Baseball Arbitration is a variation of baseball arbitration where the figures are not revealed to the arbitration tribunal. The arbitrator will determinate the quantum of the claim in the usual way, and the parties agree to accept and be bound by the figure which is closest to the tribunal's award.

Non-Binding Arbitration

Non-binding arbitration is a type of arbitration where the arbitrator makes a determination of the rights of the parties to the dispute, but this determination is not binding upon them, and no enforceable arbitration award is issued. The "award" is in effect an advisory opinion of the arbitrator's view of the respective merits of the parties cases. Non-binding arbitration is used in connection with attempts to reach a negotiated settlement. The role of an arbitrator in non-binding arbitration is, on the surface, similar to that of a mediator in a mediation. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground to compromise at, the arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable.

Subsequent to a non-binding arbitration, the parties remain free to pursue their claims either through the courts, or by way of a binding arbitration, although in practice a settlement is the most common outcome. The award and reasoning in a non-binding arbitration is almost invariably inadmissible in any subsequent action in the courts or in another arbitration tribunal.

Non-binding arbitration is utilized mostly in the United States and Canada. It is largely unknown in Europe, although in the United Kingdom there is a practice of parties who are seeking a settlement to jointly instruct a Queen's Counsel for an opinion on the merits and likely quantum of a claim, and then to negotiate on the basis of the views expressed in that opinion.

Arbitration Clause

An arbitration clause is a commonly used clause in a contract that requires the parties to resolve their disputes through an arbitration process. Although such a clause may or may not specify that arbitration occur within a specific jurisdiction, it always binds the parties to a type of resolution outside of the courts, and is therefore considered a kind of forum selection clause.

In the United States, the federal government has expressed a policy of support of arbitration clauses, because they reduce the burden on court systems to resolve disputes. This support is found in the Federal Arbitration Act, which permits compulsory and binding arbitration, under which parties give up the right to appeal an arbitrator's decision to a court.

Furthermore, arbitration clauses are often combined with geographic forum selection clauses, and choice-of-law clauses, both of which are also fully enforceable. The result is that a plaintiff may find himself or herself compelled to arbitrate in a strange private forum thousands of miles from home, and the arbitrators may decide the case on the basis of the law of a state or a nation which the plaintiff has never visited.

An arbitration clause may nevertheless be challenged and held invalid if it designates a biased party as the arbitrator. In Graham v. Scissor-Tail, Inc, 623 P.2d 165 (Cal. 1981), for example the Supreme Court of California found that an arbitration clause in a contract of adhesion which necessarily puts disputes before a body that would tend to be biased towards the defendant, is unduly oppressive, and therefore void as unconscionable. For this reason, many arbitration clauses designate widely recognized neutral organizations such as the American Arbitration Association.

Other terms may void an arbitration clause. In Armendariz v. Foundation Health Psychcare Services, Inc, 24 Cal 4th 83 (2000), a California appellate court held that a one-sided arbitration clause in a contract of adhesion for employment (deemed a necessity) may also be voided as unconscionable because of the relative positions of the parties involved. In that case, the court found there to be procedural unconscionability where an employee was held to arbitration but the employer was not, and substantive unconscionability where the contract limited the damages the employee could recover through arbitration.

Informal Clauses

In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:

"arbitration in London - English law to apply"
"suitable arbitration clause"
"arbitration, if any, by ICC Rules in London"

The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:

that the arbitrators "must not necessarily judge according to the strict law but as a general rule ought chiefly to consider the principles of practical business"
"internationally accepted principles of law governing contractual relations"

Arbitration Tribunal

An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicators which is convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of a sole arbitrator, or there may be two or more arbitrators, which might include either a chairman or an umpire. The parties to a dispute are usually free to agree the number and composition of the arbitral tribunal. In some legal systems, an arbitration clause which provides for two (or any other even number) of arbitrators is understood to imply that the appointed arbitrators will select an additional arbitrator as a chairman of the tribunal, to avoid deadlock arising. Different legal systems differ as to how many arbitrators should constitute the tribunal if there is no agreement.

Types of Proceedings

Arbitral tribunals are usually constituted (appointed) in two types of proceedings:

ad hoc arbitration proceedings are those in which the arbitrators are appointed by the parties without a supervising institution, relying instead on the procedural law and courts of the place of arbitration to resolve any differences over the appointment, replacement, or authority of any or all of the arbitrators; and
institutional arbitration proceedings are those in which the arbitrators are appointed under the supervision of professional bodies providing arbitration services, such as the New York-based American Arbitration Association (which conducts international proceedings through its Dublin-based branch, the ICDR), the LCIA in London or the ICC in Paris. Although these institutions (and many others) are headquartered in their respective cities, they are capable of supervising the appointment of arbitral tribunals in nearly any country, avoiding the need for the parties to involve local courts and procedures in the event of disagreement over the appointment, replacement, or authority of any or all of the arbitrators.
Permanent tribunals tend to have their own rules and procedures, and tend to be much more formal. They also tend to be more expensive, and, for procedural reasons, slower.

Appointing Arbitrators

The parties are generally free to determine their own procedure for appointing the arbitrator or arbitrators, including the procedure for the selection of an umpire or chairman. If the parties decline to specify the mode for selecting the arbitrators, then the relevant legal system will usually provide a default selection process. Characteristically, appointments will usually be made on the following basis:

If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than (for example) 28 days after service of a request in writing by either party to do so.
If the tribunal is to consist of three arbitrators:
each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
the two so appointed shall forthwith appoint a third arbitrator as the chairman of the tribunal.
If the tribunal is to consist of two arbitrators and an umpire-
each party shall appoint one arbitrator not later than (for example) 14 days after service of a request in writing by either party to do so, and
the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.
Most arbitration clauses will provide a nominated person or body to select a sole arbitrator if the parties are unable to agree (for example, the President of the relevant jurisdiction's Bar Association, or a recognised professional arbitration organisation such as the LCIA, or a relevant professional organisation). In default of such a provision, where the parties are unable to agree, an application for an appointment is usually made to the court.

A well drafted arbitration clause will also normally make provision for where a party to the dispute seeks to cause delay by refusing to make or agree an appointment. Often this will allow the "non-defaulting" party to appoint a sole arbitrator and for the arbitration to proceed on that basis.

Chairman

Where the tribunal consists of an odd number of arbitrators, one of them may be designated as the umpire or chairman. The selection of title actually carries some significance. When an arbitrator is "chairman", then they will not usually exercise any special or additional powers, and merely have a presidential function as the tribunal member who sets the agenda. Where a member of the tribunal is an umpire, they usually do not exercise any influence on proceedings, unless the other arbitrators are unable to agree - in such cases, then the umpire steps in and makes the decision alone.

Arbitrator Advocates

In some legal systems, it is common for each party to the dispute to appoint an arbitrator and for those two arbitrators to appoint a third arbitrator (who may or may not be called an umpire). However, the two arbitrators appointed by the parties to the dispute would essentially act as advocates for the party who appointed them, and the umpire would effectively act as a sole arbitrator. However, such systems can lead to difficulty, as other countries may be reluctant to enforce an arbitration award where two of the three "arbitrators" are clearly unable to demonstrate impartiality or independence.

Removal

In most legal systems the parties are free to specify in what circumstances the appointment of an arbitrator may be revoked. In default most legal systems provide either that (i) the parties to the dispute must act jointly to remove an arbitrator, or (ii) the other members of the arbitral tribunal must act to remove the arbitrator, and/or (iii) the court must act to remove an arbitrator. Most legal systems reserve a power to the court to remove arbitrators who are unfit to act, or are not impartial.

Resignation

It is generally accepted that one cannot force a person to continue as an arbitrator against their will, and arbitrators may resign if they are unwilling to proceed with the arbitration. Where the arbitrator becomes aware of facts that might be seen to affect his or her impartiality, they are often under a duty to resign. The parties are generally free to agree with the arbitrator what should happen with respect to (i) the arbitrator's fees, and (ii) any liability of the arbitrator (such as wasted costs), if the arbitrator should resign, with or without cause.

Death

The authority of an arbitrator is personal, and an appointment ceases upon death.

Unless the parties have otherwise provided, the death of a party does not usually revoke the appointment of any arbitrator appointed by the deceased, and any agreement relating to the appointment is enforceable in the usual way against the personal representatives of the deceased.

Filling a Vacancy

If a vacancy arises (through resignation or death, or otherwise) then the parties are free to agree:

whether, and if so, how, the vacancy shall be filled
whether, and if so, to what extent, the previous proceedings shall stand
what effect, if any, the arbitrator's ceasing to hold office has on any appointment or order made by that arbitrator (alone or jointly)
Most legal systems provide that, in default of agreement, a new arbitrator shall be appointed using the provision for appointments which applied to the original arbitrator that has vacated office; the tribunal itself (once reconstituted) should determinate whether, and if so, to what extent, previous proceedings stand; and the appointments and orders made by the previous arbitrator are unaffected.

Immunity From Suit

It is generally accepted that an arbitrator is not liable for anything done or omitted to be done in the discharge of his or her duties as an arbitrator unless bad faith is shown. At common law this point was thought to have been left open, but in most jurisdictions it is accepted that arbitrators should enjoy immunity provided that they act in good faith in the same manner (and for much the same reasons) as judges, and some jurisdictions have clarified this by statute.

Jurisdiction

In most legal systems, the arbitral tribunal is able to rule upon its own jurisdiction (often referred to as the doctrine of "Kompetenz-Kompetenz" in international law). Briefly, this enables the arbitral tribunal to determine for itself whether:

an arbitration agreement is valid,
whether the tribunal has been properly constituted under applicable law, and
what matters are to be determined by the arbitration under the agreement.
The doctrine, although continental in origin, has been recognised at common law, and has now been widely codified into national law.

Fees & Expenses

The parties may make provision for the arbitrator's fees (although in some jurisdictions, whether the parties are agreeing to submit an existing dispute to arbitration, they may not provide that each party bears its own costs). However, the position may be different between, on the one hand, as between the arbitrators and the parties, and on the other hand, as between the parties themselves.

Although the parties may provide differently in the appointment of the arbitrator, the usual rule is that the parties are jointly and severally liable for the arbitrator's fees. If the arbitrator is not paid, then they may sue either or both parties for unpaid fees.

In many jurisdictions, after making the award, the tribunal will order that the losing party pays the legal costs of the winning party, and this may include the arbitrator's fees. However, this does not affect the joint and several liability referred to above; but it does mean that the winning party may maintain a separate action against the losing party for the unpaid costs, or to be reimbursed for arbitrator's fees that the winning party has been forced to pay, but which the losing party was ordered to pay.

Hearing

An "arbitration hearing" can be either procedural or evidentiary. As in court systems, a "procedural hearing" focuses exclusively on how the proceedings are to be conducted. By contrast, an "evidentiary hearing" is the equivalent to what in the courts of many countries would be called a trial, with the presentation of evidence in the form of documents and witnesses. Although evidentiary hearings are generally available as a means to assist the arbitral tribunal in deciding contested factual issues, arbitration rules do not usually require them and leave the means of decided disputed factual issues to the discretion of the tribunal. Many decisions of arbitral tribunals are made without any hearing at all.

Where it may be appropriate to do so, arbitral tribunals can make decisions solely upon documentary evidence, which may or may not be accompanied by witness statements, which in the US are referred to as affidavits. Witness statements represent the testimony a witness would give if called to testify, and on which the witness is subject to questioning by the arbitral tribunal and, at times, cross examination by the other party.

Specific types of arbitration, for example, may rely exclusively on documents to decide disputes, such as in the growing field of online dispute resolution. In addition, some organizations, may specifically provide provide as part of their organizational bylaws or standard terms and conditions that disputes shall be arbitrated without an oral hearing and upon documentary evidence only, an example being certain trade associations, such as GAFTA

Duties of Tribunal

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.

However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:

to act fairly and impartially between the parties, and to allow each party a reasonable opportunity to put their case and to deal with the case of their opponent (sometimes shortened to: complying with the rules of "natural justice"); and
to adopt procedures suitable to the circumstances of the particular case, so as to provide a fair means for resolution of the dispute.[14]

Procedure

mode of submitting (and challenging) evidence
time and place of the hearing
language and translations
disclosure of documents and other evidence
use of pleadings and/or interrogatories
use of legal advisors
the appointment of experts and assessors

Appeals

Provisions relating to appeals vary widely between different jurisdictions, but most legal systems recognise that the right to appeal (or, technically, the right to seek to set aside) an award in an arbitration should be limited.

Usually such challenges are made on one of two bases:

that the tribunal did not have substantive jurisdiction to determine the matter; or
there was a serious irregularity on the part of the tribunal. Examples of serious irregularities may include:
failure of the tribunal to act in accordance with the rules of natural justice, or allowing a fair hearing;
the tribunal exceeding its powers (other than by exceeding its jurisdiction);
failure of the tribunal to conduct proceedings in accordance with the procedure agreed by the parties;
failure of the tribunal to deal with all the issues put to it for resolution;
uncertainty or ambiguity as to the effect of the award;
the award being procured by fraud, or otherwise being procured in a way contrary to public policy;
failure to comply with the requirements for the form of the award (eg. in writing or in a specific language);
irregularities in the conduct of the proceedings.
In some jurisdictions it is also possible to appeal against an award on

Arbitration Awards

An arbitration award (or arbitral award) is a determination on the merits by an arbitration tribunal in an arbitration, and is analogous to a judgment in a court of law. It is referred to as an 'award' even where all of the claimant's claims fail (and thus no money needs to be paid by either party), or the award is of a non-monetary nature.

Remedies

Although arbitration awards are characteristically an award of damages against a party, tribunals usually have a range of remedies that can form a part of the award.

the tribunal may order the payment of a sum of money (conventional damages)
the tribunal may make a "declaration" as to any matter to be determined in the proceedings
in most jurisdictions, the tribunal has the same power as a court to:
order a party to do or refrain from doing something ("injunctive relief")
to order specific performance of a contract
to order the rectification, setting aside or cancellation of a deed or other document.