In recent times the idea of negotiation, which is present in almost all the human activities, evolved from the resolution of a human conflict to the concepts of conflict resolution in psychology, which were adopted by some lawyers in the beginning of ADR movement; thence some recent movements brought the concept of negotiation towards a “holistic” concept of conflict resolution where the subject to be healed is not the conflict though the person. Oftentimes these legal studies have also a spiritual approach background (mainly derived from yoga techniques).
In the unfortunate event that you find yourself in a cross border dispute with a person/body in another EU member state, consideration should immediately be given to the Courts in which the dispute can be heard and which Court would be more preferable.
Some European rules may in fact contribute to fuelling the so called “Race to Courts”
EU law sets out the rules on jurisdiction to assess which Courts have jurisdiction over a dispute and importantly, gives priority to courts that are ‘first seized’.
Nearly the same happens between Countries non regulated by the EU law: the Court which first receives the claim has -generally speaking- priority over all other courts. If there is any challenge to the jurisdiction the court first seized decides on whether to hear the claim or refer it to another court (the difference is what follows: in EU Law the first seized has priority, full stop, in all other cases the first seized can decide -to a certain extent who will hear the case). This certainly happens for the relations between European Countries and U.S.A who fully abide with this rule.
Now, imagine that this unfortunate situation happens in the very unlucky event of a family law dispute, or even (God forbid) in the event of a child custody case.
To make things worse, imagine that you became a negotiatior, a mediator or a collaborative lawyer many years ago, and don’t trust anymore in Justice as Administered by the Courts, because “No one is righteous–not even one” Romans 3:10 (this sense of disenchantment generally takes 20/25 years of legal practice to appear).
How to reconcile the Race To Courts with the Principles of Negotiation, Collaborative Law and Family Mediation?
As you may know in Collaborative Practice each party must be represented by a lawyer whose representation terminates upon the undertaking of any contested court proceeding. A “good” Negotiator or Collaborative lawyer, should never seize jurisdiction first. But if you never shoot first you are very likely to lose jurisdiction. The same may apply to a Mediator-Lawyer, whose deep belief is to avoid the recourse to Courts at all costs.
Along the years, I have heard this riddle solved by the funniest ideas of collaborative practitioners and mediators from throughout the world.
IDEA #1. Shoot first, then withdraw. An outstanding Collaborative Lawyer from London came up to me with this idea. Which is not very productive tough. You’d be clashing against the principles of Collaborative Practice by sueing first (morally you’re a coward) only to lose your Client immediately after (so you’re also a failure)
IDEA #2. Stop taking international cases. This may be a very brilliant idea, though not in the case in which your practice -like mine- is mainly composed by international cases. In fact, by doing so, you can as well go fishing and close yout office.
IDEA #3. Shoot first, and remain in place. This is not acceptable for a negotiator: as any Collaborative/Mediator knows, you don’t stand the ghost of a chance to be trusted as a Collaborative Lawyer when you participate into this crazy race. And you’re not a mediator if you take sides.
IDEA #4. Don’t get retained if you can’t avoid the fight
And so on….
The number of cross border exchanges as well as that of international families is growing each year, so probably a collaborative/mediation filter is needed for these matters, where the “shoot first rule” is mostly inappropriate. Of course this “filter” cannot be imposed on a voluntary basis but it needs to be issued by International Bodies.
In the absence of any regulation should we say that the Collaborative Law, Negotiation and Mediation are only appropriate on a local, simpler, basis?
§ ONE: DEFINITIONS
However, what is Negotiation? And before that, who is a negotiator?
Negotiation can be defined as a bargaining (give and take) process between two or more parties (each with its own aims, needs, and viewpoints) seeking to discover a common ground and reach an agreement to settle a matter of mutual concern or resolve a conflict.
Effective negotiators must have the skills to analyze a problem to determine the interests of each party in the negotiation. A detailed problem analysis identifies the issue, the interested parties and the outcome goals.
Before entering a bargaining meeting, the skilled negotiator prepares for the meeting. Preparation includes determining goals, areas for trade and alternatives to the stated goals. In addition, negotiators study the history of the relationship between the two parties and past negotiations to find areas of agreement and common goals. Past precedents and outcomes can set the tone for current negotiations.
Negotiators have the skills to listen actively to the other party during the debate. “Active listening” involves the ability to read body language as well as verbal communication. It is important to listen to the other party to find areas for compromise during the meeting. Instead of spending the bulk of the time in negotiation expounding the virtues of his viewpoint, the skilled negotiator will spend more time listening to the other party.
It is vital that a negotiator have the ability to keep his emotions in check during the negotiation. While a negotiation on contentious issues can be frustrating, allowing emotions to take control during the meeting can lead to unfavorable results.
Negotiators must have the ability to communicate clearly and effectively to the other side during the negotiation. Misunderstandings can occur if the negotiator does not state his case clearly. During a bargaining meeting, an effective negotiator must have the skills to state his desired outcome as well as his reasoning.
Negotiation is not necessarily a one side against another arrangement. Effective negotiators must have the skills to work together as a team and foster a collaborative atmosphere during negotiations. Those involved in a negotiation on both sides of the issue must work together to reach an agreeable solution.
Individuals with negotiation skills have the ability to seek a variety of solutions to problems. Instead of focusing on his ultimate goal for the negotiation, the individual with skills can focus on solving the problem, which may be a breakdown in communication, to benefit both sides of the issue.
Leaders with negotiation skills have the ability to act decisively during a negotiation. It may be necessary during a bargaining arrangement to agree to a compromise quickly to end a stalemate.
Effective negotiators have the interpersonal skills to maintain a good working relationship with those involved in the negotiation. Negotiators with patience and the ability to persuade others without using manipulation can maintain a positive atmosphere during a difficult negotiation.
Ethical standards and reliability in an effective negotiator promote a trusting environment for negotiations. Both sides in a negotiation must trust that the other party will follow through on promises and agreements. A negotiator must have the skills to execute on his promises.
§ TWO WHAT IS THE (ALTERNATIVE) CONFLICT RESOLUTION?
I have recently begun to cooperate more strictly with the Person Centred Approach Institute in Italy, named IACP- istituto per l’approccio centrato sulla persona. founded by Carl Rogers, Alberto Zucconi and.Charles Devonshire.
The Person-Centred Approach was developed from the work of the psychologist Dr. Carl Rogers (1902 – 1987). He advanced an approach to psychotherapy and counselling that, at the time (1940s – 1960s), was considered extremely radical if not revolutionaryAn important part of this theory is that in a particular psychological environment, the fulfilment of personal potentials includes sociability, the need to be with other human beings and a desire to know and be known by other people. It also includes being open to experience, being trusting and trustworthy, being curious about the world, being creative and compassionate. The psychological environment described by Rogers was one where a person felt free from threat, both physically and psychologically. This environment could be achieved when being in a relationship with a person who was deeply understanding (empathic), accepting (having unconditional positive regard) and genuine (congruent).
Although initially developed as an approach to psychotherapy (eventually becoming known as client/person-centred therapy/counselling), Rogers and his colleagues came to believe that their ideas could be transferred to other areas where people were in relationships. For example teaching, management, childcare, patient care, conflict resolution.
Conflict resolution is conceptualized as the methods and processes involved in facilitating the peaceful ending of conflict and retribution. Committed group members attempt to resolve group conflicts by actively communicating information about their conflicting motives or ideologies to the rest of the group (e.g., intentions; reasons for holding certain beliefs), and by engaging in collective negotiation.
§ THREE: THE EVOLUTION OF CONFLICT RESOLUTION
Although clearly deriving from the psychology, conflict resolution has become very popular in the studies of law, during the last thirty years.
Until the end of XX Century the best known practices for resolving a dispute were the following:
The goal of mediation is for a neutral third party to help disputants come to consensus on their own.
- Rather than imposing a solution, a professional mediator works with the conflicting sides to explore the interests underlying their positions.
Mediation can be effective at allowing parties to vent their feelings and fully explore their grievances.
Working with parties together and sometimes separately, mediators try to help them hammer out a resolution that is sustainable, voluntary, and nonbinding.
In arbitration, a neutral third party serves as a judge who is responsible for resolving the dispute.
- The arbitrator listens as each side argues its case and presents relevant evidence, then renders a binding decision.
The disputants can negotiate virtually any aspect of the arbitration process, including whether lawyers will be present and which standards of evidence will be used.
Arbitrators hand down decisions that are usually confidential and that cannot be appealed.
Like mediation, arbitration tends to be much less expensive than litigation.
The most familiar type of dispute resolution, civil litigation typically involves a defendant facing off against a plaintiff before either a judge or a judge and jury.
- The judge or the jury is responsible for weighing the evidence and making a ruling. Information conveyed in hearings and trials usually enters the public record.
Lawyers typically dominate litigation, which often ends in a settlement agreement during the pretrial period of discovery and preparation.
More recently, other forms of Dispute resolution have raised the attention of the public. Particularly:
4. Collaborative Process
As part of the collaborative law method, both parties retain separate attorneys whose job it is to help them settle the dispute. No one may go to court. If that should occur, the collaborative law process terminates and both attorneys are disqualified from any further involvement in the case.
Each party in the Collaborative law process signs a contractual agreement which include the following terms:
– Each party agrees to honestly and openly disclose all documents and information relating to the issues. Neither party may take advantage of a miscalculation or an inadvertent mistake. Instead, such errors are identified and corrected.
– Each party agrees to act respectfully and avoid disparaging or vilifying any of the participants.
– The parties agree to implement outside experts where necessary in a cooperative fashion and share the costs related to those experts. (e.g. real estate appraisers, business appraisers, vocational evaluators, or accountants)
– The primary goal of the process is to work toward an amicable solution and to create a “win-win” situation for all.
– Neither party may seek or threaten court action to resolve disputes. If the parties decide to go to court, the attorneys must withdraw and the process begins anew in the court system.
One of the biggest differences in the Collaborative law process is that it recognizes that emotional issues exist that cannot be addressed by the legal system. These emotional issues are ignored in the Court process. By contrast, the collaborative law process specifically addresses these issues by bringing them to the forefront and using professionals as part of team approach to find solutions.
Another significant difference (particularly vs Mediation) is that both parties are assisted by their lawyers. Nobody has the impression to “fight alone”.
Basically no other forms of dispute resolution can be imagined.
§ FOUR: HOW DOES NEGOTIATION FIT IN THE SYSTEM OF CONFLICT RESOLUTION?
Basically any form of Dispute Resolution involves a Neutral (Arbitration, Mediation, Litigation) or two parties (assisted by lawyers) who negotiate without the help of a Neutral.
Alternative Dispute Resolution Methods all involve a certain dose of negotiation, that may be present also in adjudicational processes (i.e. the negotiation aiming at a settlement in Court).
In fact, negotiation can be defined as any form of direct or indirect communication whereby parties who have opposing interests discuss the form of any joint action which they might take to manage and ultimately resolve the dispute between them. Negotiations may be used to resolve an already-existing problem or to lay the groundwork for a future relationship between two or more parties.
Negotiation has also been characterized (by S.G. Goldberg; E.A. Frank; N.H. Rogers; Dispute Resolution: Negotiation, Mediation, and Other Processes, (Boston: Little, Brown and Company 1992) as the preeminent mode of dispute resolution, which is hardly surprising given its presence in virtually all aspects of everyday life, whether at the individual, institutional, national or global levels. Each negotiation is unique, differing from one another in terms of subject matter, the number of participants and the process used.
Given the presence of negotiation in daily life, it is not surprising to find that negotiation can also be applied within the context of other dispute resolution processes, such as mediation and litigation settlement conferences.
- Voluntary: No party is forced to participate in a negotiation. The parties are free to accept or reject the outcome of negotiations and can withdraw at any point during the process. Parties may participate directly in the negotiations or they may choose to be represented by someone else, such as a family member, friend, a lawyer or other professional.
- Bilateral/Multilateral: Negotiations can involve two, three or dozens of parties. They can range from two individuals seeking to agree on the sale of a house to negotiations involving diplomats from dozens of States (e.g., World Trade Organization (WTO)).
- Non-adjudicative: Negotiation involves only the parties. The outcome of a negotiation is reached by the parties together without recourse to a third-party neutral.
- Informal: There are no prescribed rules in negotiation. The parties are free to adopt whatever rules they choose, if any. Generally they will agree on issues such as the subject matter, timing and location of negotiations. Further matters such as confidentiality, the number of negotiating sessions the parties commit to, and which documents may be used, can also be addressed.
- Confidential: The parties have the option of negotiating publicly or privately. In the government context, negotiations would be subject to the criteria governing disclosure .
- Flexible: The scope of a negotiation depends on the choice of the parties. The parties can determine not only the topic or the topics that will be the subject of the negotiations, but also whether they will adopt a positional-based bargaining approach or an interest-based approach.
§ FIVE: DISTRIBUTIVE VS INTEGRATIVE NEGOTIATION.
There are two main approaches to any negotiation situation: distributive and integrative strategies. Each are useful in specific contexts, and the same negotiator may use either strategy depending upon their goal. We encounter distributive negotiation every time we buy a car or ask for a discount on an as-is item. Integrative negotiations happen on an ongoing basis, such as agreeing to let our children go to bed an hour later in exchange for washing the dishes.
Distributive negotiation is appropriate in “divide the pie” situations, when there is a fixed amount of resources and whatever one party gains, the other party loses. Usually it’s employed when the parties don’t know each other and don’t believe they will need to develop a relationship with each other for use in the future. A distributive approach to negotiation is usually what we encounter when we make a purchase.
In distributive bargaining, it’s best to keep information to yourself while trying to get information out of the other party. Let them make the first offer, since this lets you know what they’re willing to give up. Do tell them about alternatives you have, such as competing offers for what you’re selling, or interest in a product that competes with the one they’re selling if you’re the buyer. But be willing to make concessions in order to reach a realistic outcome.
An integrative bargaining situation occurs when it’s possible to produce a greater outcome together than either could reach on his own. It’s used when the parties have a relationship or want to establish one, and when cooperation benefits both parties. There are often multiple issues to address, and the negotiations can be complex and ongoing. Most of us use integrative bargaining within our families and between business partners.
Determine your list of priorities, and make a guess about the other party’s priorities as well. Share information with each other, being honest about your priorities; often something critical to one side is a minor concession to the other, and vice versa. Find and offer solutions that produce the most gain for the other party as well as for yourself. Remember that you will be in other negotiation situations with the other side in the future, and be willing to compromise when needed to build goodwill for later.
§ VI: AN INTEGRATIVE APPROACH TO NEGOTIATION
As JKim Wright says
“At the heart of the integrative law movement, is a shift in law from a system that focuses on differences and separation to a system that includes and honors the opinions, perspectives and humanity of all stakeholders. Integrative law takes a broader view of stakeholders to acknowledge that legal problems and controversies do not arise in a vacuum but are part of complex, inter-related systems. Integrative Law offers practices that allow stakeholders to address the conditions that give rise to conflict and to engage conflict, once it does arise, in a way that restores community well-being and allows those directly affected by the conflict to meaningfully participate in its resolution. The models, approaches, and policy initiatives have arisen in response to a new awareness of interconnectedness.
The Integrative Law movement includes a variety of existing and emerging forms of legal practice, policy initiatives, and legal education aimed at transforming the legal system to more effectively reach its basic goals. As viewed by the integrative law movement, the basic goals of a legal system include but are not limited to providing access to justice; designing, managing, and healing relationships; and providing stable, organic, flexible structures for a just, stable and harmonious community.
The existing and emerging forms of legal practices flowing from the Integrative Law movement are known by many names and have various perspectives. The approaches share similar core values. Some of them are philosophies of law, some are models. Some are ways of being that are adaptable to any area of law practice.
Integrative law includes many models and approaches. Some people refer to the emerging models and approaches as vectors, based upon the term used in the work of law professor, Susan Daicoff. Daicoff has written extensively about what she called Comprehensive Law, identifying several lenses and five vectors of the movement. Integrative law includes Daicoff’s vectors and more, including models and philosophies such as:
and many others…”
“…By whatever name, each of these approaches offers support to a transformation of the legal system. Many of those engaged in them consider themselves to be indicative of the future of law practice, responsive to the rapid changes in society and a movement toward a workplace (both for lawyers and their clients) interested in personal and spiritual growth opportunities as well as vocational activities. While the approaches may sometimes seem different, and will be described in more detail below, there is a common connection of values and principles. They include the following:
- Utilizing law as a modality for healing and helping, not only of problem resolution;
- Focusing on the future and reconciling relationships, listening, forgiveness, completing and moving on – rather than simply looking to the past and punishing transgressions;
- Viewing legal issues with inclusion of the existing or possible on-going relational context of the parties, or between the parties and the greater community, for purposes of improving connections rather than isolating or separating people;
- Including preventive models, proactively identifying risks and taking actions that will prevent conflict;
- Creating win/win/win solutions where the parties involved, the underlying community and over-arching societal values are all addressed and benefit;
- Fashioning a better world for all that is healthy, diverse, creative, and respectful of human rights and values;
- Including a humanistic approach to law practice that is sensitive to the needs, values, and the highest good of the client and society, and of legal practitioners;
- Consciously constructing a law practice environment where judges, lawyers and legal staff can change and grow as authentic and honest persons;
- Believing that the legal problems occur within a system that is an organic process which can respond to the needs of clients, society and lawyers alike;
- Defining a legal system that is based not only on problem solving, but also supporting everyone to live and work together in peace.
Other aspects of the legal system addressed by the Integrative Law movement include
- humanizing legal education,
- promoting emotionally competent lawyering,
- enhancing wisdom and compassion throughout all interactions with the legal system,
- encouraging accountability, engagement, and restoration,
- responding to societal changes mindfully, resolving conflicts and promoting client-centered lawyering…”
§ VII: WHAT IS THE HOLISTIC APPROACH TO CONFLICT MANAGEMENT?
Politicians and diplomats who try to resolve armed conflicts usually focus their efforts on achieving a pragmatic exchange of benefits between the warring parties. They aim for a compromise on the tangible issues in dispute, whether territory or resources or political power. Such a straightforward approach to conflict resolution is understandable, but it often fails because deeper aspects of the conflict—psychological, emotional, and spiritual dimensions—are ignored or downplayed.
At the same time, many peace movements attempting to transform violent conflicts into constructive partnerships also fail in their efforts because they focus most of their energy and rhetoric on protesting against injustices or abuses of power. This “prophetic” stance of decrying misguided policies is a natural and even necessary approach to peacemaking—but it is far from sufficient to shift the underlying dynamics in longstanding conflicts.
A more holistic approach to peacebuilding, one that takes more time but holds more promise for ultimate success, addresses various dimensions simultaneously.
Holistic services in the law sector may mean what they call ‘bundling’; the idea that a criminal client, for example, might need family or debt advice and would want to see another lawyer in the same firm. This is a perfectly reasonable approach, and we should have no concerns about developing it in our legal audience.
For lawyers, specifically those who specialize in mediation or conflict resolution, holism means emphasizing care of the self, coupled with care for the client. Practitioners of mediation regularly deal with conflict-related situations and may have to deal with combative clients. The holistic practitioner learns how to tap into inner resources so as to combat and control the stress and fatigue that are part of the mediation process. By doing so, the mediator is able to respond to and advise the client with clarity and calm.
Again, as JKim Wright teaches “Holistic Law means many things to many people. As we use it, it is an approach or style of practice that focuses on the whole person and the whole of the problem as a way of finding more healthy and sustainable solutions to legal problems. The whole problem or picture to a Holistic Lawyer would include more stakeholders, a broader focus on the “other side” and their contribution to the problem. It often entails a look at the lawyer’s role, the client’s role in the problem and solution, and the impact of the problem and solution on the community.
Holistic Law practitioners often look inward to become whole themselves to better assist their clients in using the legal process to find wholeness. Often holistic lawyers take a spiritual component, exploring the unity of purpose between the seemingly opposing parties. Some attorneys who practice in this style view Holistic Law as the umbrella under which other styles or approaches fit. For example, a Holistic Lawyer might take a preventive law approach or a collaborative law approach as part of their holistic legal problem-solving.”
A more comprehensive approach to the persons involved seems to be the future of every kind of legal negotiation, today.
Avv. Marco Calabrese, avvocato collaborative lawyer Rome, Italy founder of Angloitalianlaw
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