Week 10 Using Treaties and Agreements in Business Strategy and Dispute Resolution

Week 10 Using Treaties and Agreements in Business Strategy and Dispute Resolution

BATNA - Best Alternative to a Negotiated Agreement

 most advantageous course of action if negotiations fail and agreement cannot be reached

 party shouldn't accept worse situation than its BATNA

 BATNA is not a safety net but your point of leverage Dispute Resolution Methods: Principles of fair and effective

 Legitimacy - process: Dispute resolution system be product of consent (negotiated agreement) between parties whose interest at stake

 Legitimacy - substance: features dispute resolution system be objectively fair

 Scope: dispute resolution system must be able to cover full range of issues Dispute Resolution Methods

 Negotiation

 Conciliation

 Mediation

 Expert determination

 Arbitration

 Litigation Negotiation

 DR between only parties involved

 Casual: conversations, emails, texts, phone

 Formal: meetings, documentation, presentations

 Written Resolution Mediation

 introducing respected, neutral, uninvolved person to help everyone reach mutually acceptable decision

- mediator DOES NOT decide, parties decide - mediation may not resolve dispute, only facilitate

 voluntary for parties to accept

 resolution is binding, but process is not (no such thing binding mediation)

 you set the rules

 parties must agree to mediate, and must select a mediator

 an agreement may define mediation terms, procedures, maybe even the mediator

 select mediator whom comfortable with and believe will be credible with other parties

MEDIATION PROCESS

 parties give mediator information to understand dispute

 mediator meet with individual parties, or call all parties together

 after sufficient exchange of info., mediator breaks parties apart and begins shuttle diplomacy (negotiation by mediator between 2 or more parties reluctant to hold direct discussions)

 make mediator work not just shuffle back and forth Techniques of Negotiation/Mediation

 separate people from problem

 result be based on objective criteria

 focus on interest not positions

 generate variety of possibilities Expert Determination

 contractual process

 expert in field of dispute

 expert selection defined in agreement

 may conduct hearings or decide 'on the papers'

 determination is binding unless agree otherwise

 expert not an arbitrator, process not arbitration

 be fair and independent and impartial between parties Variant = Baseball Determination

 each party submits view on appropriate outcome

 role of expert not to determine outcome but simply say, which is more preferable - then that outcome prevails

Arbitration

 submission of a dispute to 1 or more impartial persons for a final binding decision, known as an "award"

 awards are in writing and generally final and binding on parties in the case

 always an option if parties voluntarily agree

 variety of arbitration providers

 you "choose" your judge

 must be independent and unrelated

 consider expediency (usefulness) of single arbitrator vs. combined wisdom of a 3 party panel…

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