PARTICIPANT PACKET

Colleague

90-Minute CLE Teleconference

July 19, 2016 1:00 – 2:30 EDT

Presented by the American Bar Association

GOVERNMENT AND PUBLIC SECTOR LAWYERS DIVISION Cosponsored by the ABA Section of Dispute Resolution

© 2016 by the American Bar Association. This information or any portion thereof may not be copied or disseminated in any form or by any means without the express written consent of the American Bar Association.

BETTER NEGOTIATIONS FOR GOVERNMENT LAWYERS

Tab A – Panelist Bios Tab B – Hypothetical Tab C – “A Fluid Negotiation Approach to Reach Resolution,” by Richard H. Melnick. Tab D – “Seven Tips for Better Negotiations Johnsen” by Joan Stearns Johnsen and Katherine Mikkelson, Pass It On, Vol. 25, No. 1, Fall 2015. Tab E – Memorandum, Attorney General Janet Reno, “Promoting the Broader Appropriate Use of Alternative Resolutions Techniques,” April 6, 1995. Tab F – Department of Justice Policy on the Use of Alternative Dispute Resolution, and Case Identification Criteria for Alternative Dispute Resolution, Federal Register, Vol. 61, No. 136, July 15, 1996. Tab G – Memorandum, President Clinton, “Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking,” May 1, 1998 Tab H – Negotiation Articles, Joan Stearns Johnsen Additional Links: Interagency Alternative Dispute Resolution Working Group: www.adr.gov ABA Section of Dispute Resolution: www.americanbar.org/groups/dispute_resolution.html

MATERIALS

TAB A

PANELISTS BIOS

JOANNA JACOBS Joanna Jacobs currently heads the Department of Justice's Office of Dispute Resolution, which serves as a resource for the use of ADR in federal civil litigation across the country involving the government. She spent many years as a federal criminal prosecutor before entering private practice and focusing on complex civil litigation and ADR. She has trained foreign judges and attorneys in Russia, Southeast Asia and the Middle East and has served as an adjunct faculty member at Rutgers and Georgetown's law schools. JOAN STEARNS JOHNSEN Joan Stearns Johnsen is a legal skills professor at the Levin College of Law at the University of Florida and a trainer, mediator, and arbitrator. Johnsen is on the faculty of the ABA Section of Dispute Resolution’s Advanced Mediator Training and a regular contributor to the ABA Dispute Resolution Section’s monthly teleconference programs. Johnsen is also the CLE Officer of the ABA’s Section of Dispute Resolution. Johnsen began her career as an enforcement attorney with the Commodity Futures Trade Commission in Washington, D.C. Johnsen also was corporate counsel for Smith Barney and the Commodity Exchange, in New York. Joan also was a visiting assistant clinical professor and director of Albany Law School’s Securities Arbitration Clinic where in addition to the clinic, she taught negotiation and ADR. RICHARD H. MELNICK Richard H. Melnick is an A-V rated attorney with the Office of the County Attorney for Montgomery County, MD, where he leads the Office’s Contract Unit. He is recognized for his outstanding abilities in litigation, negotiation, and mediation. His practice is currently focused on contract, procurement, information technology, construction, and commercial law. In addition, Melnick is immediate past president of the Bar Association for Montgomery County (BAMC) and the Montgomery County Bar Foundation, where he previously served as treasurer, secretary, and executive committee member, as well as chair of its Alternative Dispute Resolution Section. Melnick also has served on the Maryland State

Bar Association (MSBA) Board of Governors, and was chair of the MSBA Alternative Dispute Resolution Section. He also served as chair of the 2007 Maryland Business Alternative Dispute Resolution Conference, which received the MSBA President’s Award for Best Section Project to Serve the Public. Furthermore, Melnick became a certified trained mediator in 1999, facilitates the resolution of disputes in Maryland’s District Court and Circuit Court, and helps train mediators. In 2005, the District Court for Maryland selected Melnick as its Mediator of the Year. Moreover, he has served as Chair of the Maryland Judiciary’s Mediator Excellence Council. Melnick serves as an adjunct professor at the University of Baltimore Law School, and is a frequent presenter at educational institutions and programs involving issues that include negotiation; business law; contract drafting; ethics; plain English usage in drafting documents; HIPAA compliance; administrative law; and contractor vs. employee liability issues. Melnick received his BS from the University of Maryland, cum laude, majoring in business management and finance, and then received his JD from the University of Maryland School of Law. He also clerked for the Honorable John J. Mitchell, Chief Judge, Circuit Court for Montgomery County, MD.

TAB B

HYPOTHETICAL

A surprise snowstorm blanketed Chi-town in the fictitious State of Confusion*, on May 2, 2015, dumping 3 inches of snow in 1 hour, following a month of beautiful spring weather. The weather was unexpected, the roads had not been cleared, and driving was particularly dangerous. Debbie Devin, an inspector with the State’s Department of Health, was driving a state-owned car. The snow tires had been removed a month earlier. Debbie was driving south on Michigan Avenue at approximately 25 miles per hour, which was the posted speed limit, on her way to a health inspection. As Debbie pulled up to the intersection of S. Michigan Avenue and E. Monroe Street, both of which are County roadways, she was unable to stop and slid into the car in front of her, rear ending Pete Paulson. Debbie was just beginning to place a call on her cell phone at the time of the accident. Her car does not have hands-free Bluetooth. Debbie is 50 years old. This is only Debbie’s second accident in 34 years of driving.

Pete was stopped at the red light, at the intersection of S. Michigan Avenue and E. Monroe Street, when he was struck from behind by Debbie Devin. Pete is 40 years old and the single father of two children. Although Pete was just sitting at the light when he was hit by Debbie, he has been in five other automobile accidents. He has been cited by police in all of them. Pete is unemployed and does not have medical insurance. He was on his way to a job interview when the accident happened. Pete missed the interview and lost out on the possibility of that job as a programmer at Orbiz.

After the accident, Pete was taken to the emergency room of Northwestern Hospital. The doctor diagnosed whiplash, and prescribed bed rest, and recommended that Pete see an orthopedist. Pete saw an orthopedist three times and a physical therapist six times. His total medical bills including physical therapy and emergency room charges are $8,000.

Pete could not get out of bed for the first two weeks after the accident. His pain was real and debilitating. Pete had to ask friends to help him with his children and bought them gifts totaling $500 to thank them, even though he couldn’t really afford it. Pete credits his recovery to yoga, and has become a certified yoga instructor. The class costs $1,000. Pete has been hired by a resort in New Town, Old York, where he is excited about his new life and a new start for his children. Pete anticipates his moving expenses will be $5,000. He worries, however, that taking time off to come back to Chi-town for depositions or a possible trial could cost him his new job.

Pete’s car, a 2005 Volvo, was totaled. The car’s pre-accident value was appraised at $7,000. Pete has been driving a compact rental car at a cost of $200.00 per week. The cost to date for the rental is $5,000. Pete feels uncomfortable driving his children in this rental car due to its small size. Pete saw an amazing used 2010 Subaru Outback with all-wheel drive that he would love to purchase before someone else does. The car costs $10,000.

Pete has sued to recover all of his/her consequential damages. Additionally, his claim for pain and suffering is $80,000. Pete is represented by his brother-in-law at no cost.

Pete’s Pain and Suffering Claim $80,000

Pete’s Compensatory Damage Claim Medical Expenses: $8,000 Pete’s Rental Car: $4,000 Pete’s Totaled Volvo: $7,000

Immediate Needs Yoga Certification Course: $1,000 Moving Expenses: $5,000 Used Subaru: $10,000 Gifts for Friends: $500

TAB C

American Bar Association Government and Public Sector Lawyers Division

July 19, 2016

© July 19, 2016 By Richard H. Melnick, Associate County Attorney

Office of the County Attorney for Montgomery County, MD Let’s play a word association game for a moment. Purchasing a home or a car. Seeking

employment. Asking for a raise. Deciding which set of parents that you and your significant

other will visit over the holidays. Discussing with your child whether he or she really needs that

new bicycle. Drafting a demand letter for your client who was injured in an automobile accident.

Working through the terms for obtaining that new “SaaS” technology solution. Even your daily

drive to work. You may ask, “What do all of these things have in common?” The answer is that

each of these situations involves a negotiation.

As the above examples highlight, and as more than one scholar has observed, life is a

negotiation. In our everyday lives, including when representing our clients, we are confronted

with countless situations involving negotiation. As a working definition, “negotiation” is a

process by which two or more people communicate, to solve a particular issue over which they

have competing needs, interests, or desires. The cornerstone of negotiation is communication,

which may manifest itself in verbal, non-verbal, or written form. Through these communication

methods, the parties seek and exchange information that educates them regarding: the needs,

interests, and desires of both parties; information that each party possesses; the willingness of

each party to share particular information; the personality, knowledge, emotions, biases,

integrity, power, creativity, and control possessed by each party (which may provide a gateway

to further communication and the brainstorming of solutions); and, the substantive issues over

which the parties are negotiating. The more efficiently and effectively the parties communicate,

the better able they are to make reasoned, objective decisions that lead to agreement and

resolution of the issues between them. Also, the more willing each side is to share information,

the lower will be the resulting transaction costs during the negotiation process.

The set of discrete actions taken, or decisions made, by each party during a negotiation

will vary depending upon the unique set of facts surrounding that negotiation. However, a

negotiator may be well-served, and maintain some level of control over the process, by

establishing steps to organize and anticipate behavior and decision-making during a negotiation.

In this regard, the following 10 fluid steps may be useful in your negotiations.

TEN FLUID STEPS TO A NEGOTIATION

1. Preparation and Planning

2. Ice Breaking

3. Agenda Control

4. Informational Bargaining**

5. Proposals; Demands; Offers

6. Persuasion/Justification

7. Concessions

8. Crisis—Resolution or Deadlock

9. Conclusion

10. Memorialization—AGREEMENT/CONTRACT!!

While the above steps provide a linear, numerical order, corresponding to the point in a given

negotiation at which they are most likely to first arise, it is important to remember that, in reality,

the steps are “fluid”. This means that in any given negotiation, one party or the other may go

back and forth between the steps and apply them in a different order at points of the negotiation.

These fluid steps are discussed in greater detail below.

Preparation and Planning involves each negotiator determining as many of the facts

related to the issues as possible, beginning with those that are readily available to that side. This

includes coordinating with all who are part of a party’s decision-making process, and arriving at:

that party’s desired result (“Best Outcome” or “Want”); the manner and extent to which the party

seeks, or is willing to provide, information; the amount or value at which that party is willing to

walk away (i.e. “Reservation Point” or “Need”); the interests underlying the positions taken by

the party; and, projections regarding the other party’s answers to each of these topics. This

enables the negotiators to then bargain for, exchange, and evaluate information, and consider

whether to adjust their respective positions, based on that information. Furthermore, each

negotiator should plan ahead to decide whether to adopt a problem solving versus adversarial

approach, in general, or regarding foreseeable contentious issues, in particular. Each party

should also consider possible creative solutions to address the underlying interests of each party,

as well as the positives and negatives of those solutions, prior to each stage of the negotiation.

Among the factors to think through in evaluating potential options are: (a) the intrinsic value of

that which is being offered; (b) social (including relationship) implications of the choice; (c)

psychological ramifications on each of the parties in this or future negotiations: (d) opportunity

costs of accepting the choice at the expense of another solution; and (e) the costs versus benefits

of the choice. As a famous philosopher once said, “You can’t always get what you want, but if

you try sometimes, you might find, you get what you need.” Through preparation and planning

at each stage of the negotiation, even Mick Jagger can increase his chances of getting what he

“needs”, and even what he “wants”.

Ice Breaking is the beginning stage of a particular bargaining relationship, or stage of a

negotiation, during which the negotiators introduce themselves to the process and one another,

inquire about things relevant to the other person that are not directly related to the substantive

issues, evaluate one another, and plant the seeds for establishing the protocols for

communication. As an example, at the first meeting, one negotiator is visiting the office of the

other. Upon entering the office, the visiting negotiator sees a picture of a young girl on the other

negotiator’s desk, and says, “That is a lovely photo. Is she your daughter?” One possible

response may be a caring, “Yes. I love her very much, and she is the reason for all of the other

efforts I pursue in my life.” In contrast, the knowledge learned from that negotiator, and the

manner in which the other negotiator may engage that person in future discussions, may be very

different if the negotiator’s response was, instead, a flippant, “No. It came with the frame.”

Agenda Control relates to the logistics and manner by which the parties communicate and

engage with one another during the negotiation. Like the rules of journalism, the parties decide

and negotiate the “who, what, where, when, why, and how” of the negotiation. For instance, will

the president of the company, or a manager of the department seeking the goods or services,

serve as the negotiator? What power imbalance might that present, depending on whom the

other party selects to represent it during the negotiation? At what location will the negotiation

take place—at “our” office, “their” office, or a neutral location? The answer for a party may

depend on the facts and circumstances incident to the particular negotiation. The efforts by each

side to gain an advantage in, or to prevent the other side from, controlling the agenda, may

impact the progress of the negotiation. For instance, the conflict in the Middle East has been

going on for centuries. During these protracted negotiations, the Israelis and Palestinians have

periodically lost precious time in seeking to achieve a peaceful resolution, without even

approaching the substance of the disputed issues, because they could not agree on the location

for a meeting.

Informational Bargaining goes to the heart of a negotiation. It involves the conversation

over the substantive matters that either relate to, or are at the core of, the issues over which the

parties have competing needs, wants, and interests. Each negotiator is seeking information upon

which to base objective value on the issue being negotiated, particularly where in many cases

subjective considerations may seem prevalent. For instance, the fair market value (“FMV”) of a

particular item can be determined only by the amount at a given moment in time that a ready,

willing, and able buyer will pay to a ready, willing, and able seller for that item. Accordingly,

negotiators look to information that is helpful to establish FMV. For example, a home purchaser

may look to recent comparable home sales, and a car purchaser may seek Edmonds’ internet

listings of manufacturers’ and car dealers’ costs to bring a new or used car to market, or the

Kelly Blue Book values for an “average” vehicle of the same make, model, and year. However,

this information does not, in itself, establish FMV, because only the informed outcome of the

present negotiation between the current buyer and seller can truly establish the resulting FMV.

Furthermore, the parties engage in a give-and-take regarding the information they each

will readily disclose to, or seek to conceal from, the other side. Regardless of the formality of

the “discovery” during negotiations (from conversations, to depositions and interrogatories), a

negotiator should seek information internally, from the other side, and from multiple other

sources-- anytime, anywhere, and anyhow (within legal, ethical, and moral limits, of course). In

this electronic age, information is available from multiple sources, including Internet websites,

podcasts, blogs, books, newspapers, magazines, and subscription services. A negotiator must

make judgments regarding the reliability of information, including the trustworthiness of the

source from which the information is received. If a negotiator seeks information from the

negotiator on the other side, the willingness of the other negotiator to provide the information

sought, and the reliability of that information provided, will impact the level of trust and integrity

the requesting negotiator will attribute to the other negotiator in both the present negotiation and

in the future. Accordingly, a negotiator may want to think twice before trying to trick the other

negotiator, especially where a long-term, on-going relationship may be desired.

Proposals, Demands, and Offers (hereinafter “proposals”) are introduced by the parties to

a negotiation only after they have exchanged sufficient information to assess the strengths and

weaknesses of their cases, and the value of that which is being negotiated. Some take the view

that being the first to make a proposal helps to frame the issues in a manner favorable to that

party, while others try to force the other side to make the first proposal in order to force that

party to place an outside limit on the value that party seeks. Regardless of which party makes

the first proposal, that party should leave room for negotiations with the other party, including

incremental concessions by each, that will ultimately lead to a resolution. This may require

some preparation and planning to develop a pattern of concessions with which a party is

comfortable, in order to arrive at its Best Outcome or its Reservation Point. Note that attempting

to begin with a proposal that already factors in the considerations and compromises that the

parties would negotiate-- even if done with the honest desire to save each party the time and

aggravation of negotiating, will likely have the opposite effect. The other side will feel like this

effort preempts and cuts-off its reasonable expectation to negotiate, and will believe the proposer

has a lot more to concede. The fact that the proposer, in reality, now has very little room left to

move in the direction that the other party desires, creates further inefficiency in the negotiation.

Persuasion and Justification from one party to the other helps each to understand the

other party’s factual basis or rationale underlying a proposal, and facilitates the development of

creative solutions to meet each party’s interests. A negotiation has been likened to a rocket

ship’s journey to the moon, with preparation and planning to calculate the path at lift-off, and

then to revise the plan at each stage of the flight, based on justification provided by new factual

information (e.g. atmospheric conditions, fuel consumption, trajectory, retro-rocket efficiency,

meteor strikes, gravitational pull, etc.). Similarly, while negotiators are advocates who seek to

arrive at the best possible outcome for the side they represent, they should remain flexible, open,

and adaptable to facts that objectively and reasonably support the other side’s proposal.

Objective, reasonable (rather than subjective) criteria presented by a party helps build a strong

case to justify a party’s position. For example, a law that the parties must follow provides strong

justification for including an agreement provision consistent with that law. Concessions by each side may result from the persuasion and justification articulated by

the other side. The parties may present counter-offers that concede points, bringing them closer

to agreement. Negotiators should be careful to not “bet against themselves” by making

consecutive concessions, without an intervening concession by the other negotiator. Consecutive

concessions by one party may give the appearance of a weak position to the other party, and

create a slippery slope that rewards the other side for saying and doing nothing.

Crisis occurs in a negotiation either when the parties encounter deadlock, or when they

reach agreement/resolution. When the parties are deadlocked and can’t reach agreement, they

may be content to finish the negotiations and proceed with a better alternative to what could have

been a negotiated agreement. In this regard, a party considers its best alternative to a negotiated

agreement (its “BATNA”), and will not enter into the proposed agreement if it believes a better

alternative exists. If each of the parties believes an agreement is possible that is better than each

of their BATNAs, then one or both of them may want to go back to preparation and planning a

way to bring the parties back to the negotiation. Once the parties reach agreement, they often

may need to continue to further express the details of the agreement in writing. This may

involve more negotiation to get to a final written agreement.

Conclusion of the negotiations may occur after deadlock or agreement. At deadlock, the

parties may want to memorialize, in writing, any areas on which they reached agreement, for

possible future action. Ideally, but not always, the parties may want to part ways with a

handshake, or in an otherwise amicable fashion that leaves open the possibility for a future

relationship. Upon reaching agreement, the parties should summarize and outline essential terms

to put in a written agreement, including Scope of Work, Compensation, Manner & Method of

Payment, or Delivery Due Dates, as appropriate.

Memorialization involves the parties drafting and finalizing a written version of their

agreement. The parties sometimes save time at this stage if they, through prior preparation,

planning, and agreement, develop a working, written draft of their agreements as they work their

way through the negotiation process.

If you have reached this point, congratulations, you have a deal!

TAB D

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Fall 2015Vol. 25, No. 1

The newsletter of the American Bar Association’s

Government and Public Sector Lawyers Division

No matter what type of law you practice, the ability to negotiate well is a vital skill.Whether settling a claim, obtaining favorable terms on a service contract, or reach-

ing a plea deal, you are engaged in the act of negotiation. Follow these tips to become a better negotiator.

1. Preparation and planning are paramount. One of the most frequent mistakeslawyers make is failing to prepare for a negotiation due to a belief that theparameters can only be determined after learning an adversary’s demandsor offer. Don’t make this error! Preparation is key to achieving a desired

outcome. To prepare properly, you must gain a full understanding of both your client’s and your adversary’s positions. First you must accurately determine your client’s spe-cific priorities. Find out what your client absolutely must have and what is desirable but not essential. Work with your client to develop a list of must-have items, second-ary points that are important, but not vital, and low priority goals. Keep in mind the option to trade away the latter, especially if they are “must haves” for your adversary. Two key questions for your client are a) “If you could get everything you wanted from this negotiation, what you would want in the final agreement?” and b) “If everything goes poorly, what would be the very least you would accept in a final agreement?” Therefore, try to determine with your client what the other side wants. Do your due diligence by researching prior cases, news articles, your opponent’s website, and their social media outlets.

For example, in a construction dispute, if your contractor supplied a standard product which he claims had been approved, but is actually not suitable, be prepared to discuss whether or not the product installed actually had been approved (which would go to the issue of liability), and also extensively research the costs of possible options for ameliora-tion. You should determine the contractor’s actual labor and sup-ply costs, compared to what he might charge. Your preparation should involve investigating the soft costs for both both parties in terms of construction delays and litigation costs if the issue is not informally resolved. Give some thought as to the value of a continuing relationship with the contractor and the possibility of future projects. Furthermore, think about whether the contrac-tor has engaged counsel or will be negotiating directly. Think strategically about whether the appropriate person to conduct the negotiation is the project manager for your entity rather than a lawyer. If this is the case, it may be a better idea for you to coach from behind the scenes.

Seven Tips for Better NegotiationsBy Joan Stearns Johnsen and Katherine Mikkelson

Published in Pass It On, Volume 25, Number 1, Fall 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

2 Pass It On n Fall 2015 www.governmentlawyer.org

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Member EditorPauline Weaver

Staff EditorsKatherine Mikkelson

Kiren JahangeerSusan Kidd

Comments, letters to the editor and other suggestions

Editor, Government and Public Sector Lawyers Division

American Bar Association1050 Connecticut Ave., NW, Suite 400

Washington, DC 20036202-662-1020

E-mail GPSLD@americanbar.org

Visit our homepage www.governmentlawyer.org

Reprint requests must be made in writing to copyright@americanbar.org.

Copyright 2015 American Bar Association

Editorial StatementPass It On provides a forum for

the discussion of issues of special concern to government and public sector lawyers. Pass It On is edited by members of the Government and

Public Sector Lawyers Division. Publishing and editorial decisions are based on the editors’ judgment of the

quality of the writing, the timeliness of the article, and the potential interest

to the readers of Pass It On. The views in Pass It On are those of the authors and may not reflect the official policy of the American Bar Association or the Government and Public Sector Lawyers Division. No endorsement

of the views should be inferred unless specifically identified as the official policy of the American Bar

Association or the Government and Public Sector Lawyers Division.

2. Make sure the decision makers are present. Who the decision maker actually is will vary from

situation to situation. The best way to avoid a problem as you are trying to close a deal is to begin your negotia-tion by asking who will need to be consulted before the parties can reach a decision. Request that this person or persons be available for the negotia-tion. When you are not sure who the decision maker is, ask strategic questions such as: “Does this deal comport to your agency’s policy?” or “How will this affect your fiscal year budget?” Observe the dynamics in the room. Wait and watch to see to whom everyone’s eyes turn.

3. Communication is the cornerstone. Communi-cation takes all forms including written, verbal

and non-verbal. Non-verbal communi-cation is probably even more impor-tant than what is communicated verbally. Reading body language is especially important since those signals can override what is being spoken. For example, if the person you are negotiating with slowly says, “Yeaaaaaaaaah. That might be an option,” but her face lights up, she blinks very fast and smiles, this indi-cates that she is more excited about your proposal than she’s letting on. Watch for changes in how someone behaves. Their normal physicality is a baseline. For example, if someone has been calm and relaxed and then

suddenly begins to tap their toes or to fidget, she may be uncomfortable about what she is conveying or what she is trying not to convey. Watch for the point when tightly folded arms begin to relax, as this indicates your requests are acceptable. On the other hand, if you notice your opponent’s eyes begin to wander when you ini-tially had eye contact, irritated sigh-ing sounds, or the tapping of fingers on the table, these may be signs that indicate you do not have agreement.

4. Who should make the first offer? It depends (yes, we know you love that law-yerly answer). A reason

to let the other person make the first offer is to learn information about how your adversary sees her case. If the other person goes first, you may learn something about what the opposition is targeting. If you have no other way of learning what the value of the case is, then letting the other person go first is an appropriate choice. On the other hand, a reason for you to make the opening offer is to take advantage of the opportunity to anchor. If you have valued a case at between $300,000 and $500,000 and your adversary opens with $1.2 mil-lion, the tendency may be to settle the case at the higher end of the range. Initial numbers anchor expectations and probably exert a strong influence on the likely counter to an opening demand. Cognitive psychologists have found that the first number that we hear exerts a powerful influence over any subsequent analysis of objective as well as subjective value. Making the first offer and anchoring your adversary is a way to influence your adversary’s decision making and evaluation process. Studies con-firming this impact have found, for example, that juries are influenced by demands as well as by damage caps.

5. In persuasion, context is everything. Context is a powerful influence in

Published in Pass It On, Volume 25, Number 1, Fall 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

www.governmentlawyer.org Pass It On n Fall 2015 3

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negotiation decisions. Think about how you feel about a $5.00 coupon from Starbucks coffee. Would you value that same coupon providing the same economic value if it were for $5.00 off of your new $30,000 car? If the plaintiff knew that he was receiv-ing the highest amount paid for a case in a comparable series of cases, he would be very pleased to receive a settlement of $200,000. Contrast the dissatisfaction he would likely feel if he were offered $200,000 along with the knowledge that comparable cases had settled for $300,000 even if you explained that, due to circumstances in his particular case, $200,000 was a very generous offer. No doubt he would have difficulty appreciating the offer, due to the psychological influ-ence of context.

6. Avoid sellers/buyers remorse. If a favorable result is obtained, we are often surprised when we

still have unhappy, remorseful cli-ents. The reason may be that while we focused on obtaining a fair result, we overlooked the need to provide our clients with a process that they perceived as fair. Studies have demon-strated that procedural fairness is as important as the substantive outcome. Your clients may question the result if they believe that their concerns were not aired. Studies have determined that there are four criteria that influ-ence the perception that a process is fair: a) the ability to be heard, b) the neutrality of the process, c) adherence to formal rules and policies, and d) respect and the quality of treatment of the participants. This helps to explain why in a mediation, the parties should not only have an opportunity to speak, but why you must listen and validate what is said. For the process to be fair, clients should fully understand the rules, especially those regarding con-fidentiality and ex parte communica-tions. Highlight the fact that the rules will be applied to all sides equally. Set a positive cooperative tone with the other side to encourage reciprocity

Hello! I am your new chair and I consider it a great honor and privilege to serve in this capac-

ity. I have practiced law since 1998. Currently I serve as the Executive Director of the New Jersey Board of Medical Examiners Practitioner Review Panel. Prior to selecting law as my vocation, I promoted children’s health issues through my work as a regis-tered nurse. I have dedicated my entire professional life to the pursuit of justice and giving back to my community. In addition to the ABA, I am actively involved in the New Jersey State Bar and have found bar work very rewarding.

What I truly love about our Division is the camaraderie, friendship and exchange of ideas with my fellow public lawyers. When city and county attorneys, legal aid lawyers, public defenders, district attorneys, judges, and state attorneys general come together and not only get along, but also help support each other, you know it’s a good thing.

One of my goals this year is to deliver a series of webinars that focus on essential skills such as negotiations and depositions to name a few. You will see more about these offerings on these pages in the near future and in your inbox, so I urge you to keep your eye out for them and take advantage of any or all of them. Webinars are a great way to stretch your CLE dollars since no travel is required and you can participate from the comfort of your office.

I look forward to a productive year. As always, if you have suggestions, ideas and even critiques, feel free to contact me through the Division offices at GPSLD@americanbar.org.

Joan M. BurkeChair, 2015-2016

MESSAGE TO THE MEMBERS

towards you and your client. Clarify with your clients what their role is in choosing to settle or to go forward.

7. Put it in writing. Needless to say, you MUST draft a contract or memorandum of understanding (MOU)

once terms are agreed upon. Take full and accurate notes during the negotiation process so that you can refer back to them when drafting the MOU. Ask your client to review it to ensure accuracy. If there are addi-tional revisions to the MOU, use email to communicate so that even those discussions are in writing and be sure to carefully read the MOU each time it comes back to you. You do not want to be surprised by slight modifications the opposition made, either honestly or unethically.

Joan Stearns Johnsen is a legal skills professor at the Levin College of Law at the University of Florida and a trainer, mediator, and arbitra-tor. Johnsen is on the faculty of the ABA Section of Dispute Resolution’s Advanced Mediator Training and a regular contributor to the ABA Dis-pute Resolution Section’s monthly teleconference programs. Johnsen is also the CLE Officer of the ABA’s Sec-tion of Dispute Resolution. Katherine Mikkelson is the associate director of the Division. This article is based on a recent CLE webinar presented by the Division in July, Better Nego-tiations for Government Attorneys. For information about purchasing a recording of this webinar, visit www.government lawyer.org.

Published in Pass It On, Volume 25, Number 1, Fall 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

TAB E

OBD 1160.1

PROMOTING THE BROADER APPROPRIATE USE OF ALTERNATIVE DISPUTE RESOLUTION TECHNIQUES

Approval Date: April 6, 1995 Approved By: JANET RENO

Attorney General Distribution: OBD/H-1; OBD/F-2; SPL-23 Initiated By: Office of the Associate Attorney

General

1. PURPOSE. The purpose of this order is to promote the broader use of alternative dispute resolution (ADR) in appropriate cases to improve access to justice for all citizens and to lead to more effective resolution of disputes involving the government.

2. SCOPE. The provisions of this order shall apply to all Departmental litigating divisions and to all U.S. Attorneys. This order is applicable to civil matters only. It is not intended to affect criminal matters, including enforcement of criminal fines or judgments of forfeiture.

3. MODIFICATION. This order expands upon but does not otherwise modify the Department of Justice's Memorandum of Guidance on Implementation of the Litigation Reforms of Executive Order No. 12778, notice of which was published at 58 Fed. Reg. 6015-03.

4. AUTHORITY. In addition to the general authority conferred upon the Attorney General by law, specific authority to provide ADR guidance is provided by section 3 of the Administrative Dispute Resolution Act of 1990, Pub. Law 101-552, 104 Stat. 2736-37.

5. DEFINITION. As used in this order, "formal ADR techniques" include, but are not limited to, arbitration, mediation, early neutral evaluation, neutral expert evaluation, mini-trials and summary jury trials.

6. CREATION OF POSITION OF SENIOR COUNSEL FOR ALTERNATIVE DISPUTE RESOLUTION. There shall be created within the Department of Justice, the position of "Senior Counsel for Alternative Dispute Resolution." The Associate Attorney General shall designate a career employee of the Department of Justice at the Senior Executive Service level to fill this position. The Senior Counsel shall develop policy on, and promote aspects of ADR, and in furtherance of that goal shall:

a. Assist senior management in developing policies for the use of ADR, including revising the Department Guidance on the Use of Alternative Dispute Resolution for Litigation in the Federal Courts.

b. Assist with the design and execution of ADR-related training, recordkeeping, program evaluation and reporting functions.

c. Provide advice and assistance to Department supervisors and employees on selecting appropriate cases for using ADR and on the application of particular ADR techniques.

d. Report regularly to the Attorney General, through the Associate Attorney General, on the status of the Department's ADR activities.

e. Represent the Department in government-wide ADR activities, including programs and projects with the Administrative Conference of the United States, the Office of Management and Budget, the National Performance Review, and the federal courts.

f. Advise senior management on legislation, rulemaking, and other policy matters relating to ADR.

g. Serve as the Dispute Resolution Specialist for the Department of Justice as defined in Section 3(b) of the Administrative Dispute Resolution Act, 104 Stat. at 2737.

h. Perform such other duties and functions related to the promotion of ADR as may be assigned by the Attorney General, the Deputy Attorney General and the Associate Attorney General.

7. COMPONENT ADR GUIDANCE. By September 11, 1995, each litigating division and the Executive Office for United States Attorneys acting on behalf of the United States Attorneys shall provide its attorneys with ADR guidance containing the following provisions:

a. A policy statement by the head of the component indicating that attorneys are expected to use ADR in appropriate cases as an alternative to litigation and are to cooperate with court-annexed or court-sponsored ADR programs and with efforts to develop and evaluate such programs.

b. A set of criteria to be used in identifying specific cases appropriate for resolution through settlement negotiations or the use of a formal ADR technique. The component guidance should also identify ADR methods most suitable to resolving certain categories of cases, and criteria for the selection of ADR providers.

c. A requirement that any attorneys whose practices are substantially civil attend a comprehensive basic training program in negotiation and ADR and that all experienced attorneys handling civil matters be required to participate in periodic supplemental ADR training. The content and nature of such training shall be determined by the Senior Counsel for Alternative Dispute Resolution in consultation with the Department's training components.

d. A complete explanation of the internal procedures attorneys should follow in obtaining authorization and funding for the use of formal ADR techniques.

8. FURTHER RESPONSIBILITIES OF PERFORMING COMPONENTS.

a. The components subject to this order shall coordinate with the Senior Counsel for

Alternative Dispute Resolution the development of the ADR guidance, as well as their performance of related recordkeeping, program evaluation and reporting functions.

b. The components subject to this order shall review their ADR guidance at least annually and, in conjunction with the Senior Counsel for Alternative Dispute Resolution, shall make any necessary changes.

c. The components subject to this order, in consultation with the Senior Counsel for ADR, shall designate a person or persons with primary responsibility for coordinating the component's ADR efforts so that a network of individuals with ADR expertise is established throughout the Department. This network shall assist the Senior Counsel for ADR in developing and implementing Department ADR policies.

d. The components subject to this order shall maintain statistics regarding its use of ADR and report those statistics annually to the Associate Attorney General. These statistics should demonstrate both the component's compliance with this order and the full extent of its overall use of informal and formal ADR techniques.

9. NO PRIVATE RIGHTS CREATED. This order is intended only to improve the internal management of the Justice Department in resolving disputes and conducting litigation. This order shall not be construed as creating any right or benefit, substantive or procedural, enforceable at law or in equity, by a party against the United States, its agencies, its officers, or any other person. This order shall not be construed to create any right to judicial review involving the compliance or noncompliance of the United States, the Justice Department, its officers, or any other person with this order. Nothing in this order shall be construed to obligate the United States to offer funds to settle any case, accept a particular settlement or resolution of a dispute, to alter its standards for accepting settlements, to submit to binding arbitration or to alter any existing delegation of settlement or litigating authority.

10. FURTHER GUIDANCE. The Associate Attorney General shall have the authority to issue further guidance regarding the scope of this order, consistent with the purposes of this order.

/s/JANET RENO Attorney General

TAB F

TAB G

THE WHITE HOUSE

WASHINGTON

May 1, 1998

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES

SUBJECT: Designation of Interagency Committees to Facilitate and Encourage Agency Use of Alternate Means of Dispute Resolution and Negotiated Rulemaking ._ .

As part of an effort to make the Federal Government operate in a more efficient and effective manner, and to encourage, where possible, consensual resolution of disputes and issues in controversy involving the United States, including the prevention and avoidance of disputes, I have determined that each Federal agency must take steps to: (1) promote greater use of mediation, arbitration, early neutral evaluation, agency ombuds, and other alternative dispute resolution techniques, and (2) promote greater use of negotiated rulemaking.

By the authority vested in me as President by the Constitution and laws of the United States including sections 569(a) and 573 (c) of title 5, United States Code, as amended by the Administrative Dispute Resolution Act of 1996 (Public Law 104-320), I hereby direct as follows:

An Alternative Dispute Resolution Working Group, comprised of the Cabinet Departments and, as determined by the Attorney General, such other agencies with a significant interest in dispute resolution, shall be convened and is designated under 5 U.S.C. 573(c) as the interagency committee to facilitate and encourage agency use of alternative means of dispute resolution. The Working Group shall consist of representatives of the heads of all participating agencies, and may meet as a whole or in subgroups of agencies with an interest in particular issues or subject areas, such as disputes involving personnel, procurement, and claims. The Working Group shall be convened by the Attorney General, who may designate a representative to convene and facilitate meetings of the subgroups. The Working Group shall facilitate, encourage, and provide coordination for

2

agencies in such areas as: (l) development of programs that employ alternative means of dispute resolution, (2) training of agency personnel to recognize when and how to use alternative means of dispute resolution, (3) development of procedures that permit agencies to obtain the services of neutrals on an expedited basis, and (4) recordkeeping to ascertain the benefits of alternative means of dispute resolution. The Working Group shall also periodically advise the President, through the Director of the Office of Management and Budget, on its activities.

The Regulatory Working Group established under section 4 (d) of Executive Order 12866 is designated under 5 U.S.C. 569(a) as the interagency committee to facilitate and encourage agency use of negotiated rulemaking.

This directive is for the internal management of the executive branch and does not create any right or benefit, substantive or procedural, enforceable by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

Signature of William

TAB H

Who should make the first offer/demand? View this email in your browser

Who should make the first offer/demand?

Many negotiators have a policy of insisting that the other person make the first

opening offer or demand. The common wisdom is to always make the other

person go first whenever you can. People often adopt this approach without

actually considering any underlying rationale. The strategic choices in

negotiation tend to be fact specific. Therefore the answer to the question of who

should go first is that it depends. There are advantages to going first and

advantages to going second depending on the circumstances. Understanding

the analysis will help you to make the correct choice.

A reason to let the other person make the first offer/demand is to learn

information regarding how your adversary sees his or her case. If the other

person goes first, you may learn something about what the other person is be

targeting. If you have no other way of learning what the value of the case is,

then letting the other person go first is an appropriate choice. However,

remember that depending on your adversary's negotiating style, the opening

may not help you much at all. If your adversary is a competitive, positional

bargainer, The opening may be no more than a negotiating posture that

actually has very little to do with the objective value of the case or even how

your adversary sincerely views the actual value of the case. Furthermore, if you

have sufficient objective criteria to determine what an appropriate zone of

possible agreement would be and even have some idea of what your

adversary's best alternative is likely to be, then there may be no advantage to

making him or her go first. In fact, there may be a disadvantage.

A reason for you to want to make the first opening offer/demand is to take

advantage of the opportunity to anchor. Cognitive psychologists have found

that the first number that we hear exerts a powerful influence over any

subsequent analysis of objective as well as subjective value. Being the one to

make the first demand or offer and anchoring your adversary is a way of

influencing your adversary's decision making and evaluation process. Studies

confirming this impact have for found for example that juries are influenced by

demands as well as by damage caps and that judge's are influenced by the

numbers contained within motions, even spurious motions. If your adversary

goes first, his or her opening demand/offer will influence your own evaluation.

Understanding the importance of anchoring will help you resist a "one size fits

all" approach to opening offers and demands.

To read more on anchoring, I recommend two articles. The first is by Prof. Chris

Guthrie of Vanderbilt University School of Law and Dan Orr of Morgan Lewis

and Bockius, Anchoring, Information, Expertise, and Negotiation, New Insights

from Meta-Analysis, 21 Ohio St. J. on Disp. Res. 597 (2006). I also

recommend Inside the Judicial Mind, 86 Cornell L. Rev. 777, 813-14 by Chris

Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistich . With free registration,

you can download these articles from the social science research network.

http://ssrn.com

I hope you would like to receive additional negotiation tips. Please click on the

unsubscribe button if you would prefer not to. As always, I welcome your

feedback. Please write me at: JSJohnsen@jsjmediations.com

Persuasion: The Importance of Context View this email in your browser

Persuasion: The Importance of Context We believe we make rational decisions that will maximize our economic benefit.

Instead as illustrated in Prof. Daniel Ariely's bestseller Predictably Irrational we

consistently make irrational decisions based on emotion and psychological biases

that make no economic sense at all. Understanding how our psychology influences

our decisions in predictable often uneconomic ways can help us make better

decisions. Our awareness of these principles also will help us to be more

persuasive with our negotiating adversaries.

One of these factors is context. In determining economic value, we cannot resist

comparing and contrasting. We are easily swayed by irrelevant factors. Our

concept of value is derived less from economics and more from context than we

are often aware.

You might for example turn the car around if you forgot to bring the coupon for $10

off your $18 take-out pizza. Chances are you would be far less likely to go home

for the $10 coupon if it were for a discount off the purchase of the $40,000 car you

were about to buy even though rationally, it represents an identical $10 savings.

Context influences how much of a good thing we think we are getting. A slice of pie

on a large plate may look like a small snack and leave us wanting more. The same

size slice on a small plate may actually cause us to leave some pie unfinished.

Social scientists have found that at "All You Can Eat" buffets, people actually

consume less food when the plates are smaller than they do when the plates are

larger. Again, our perceptions are influenced by context.

Our happiness is similarly influenced by how we compare ourselves to those

around us. Our house may be all the house we need, but our satisfaction with our

house will inevitably be influenced by how our house compares to all the other

houses in our neighborhood.

Rationally, we should seek to be paid more than less, but try to imagine your

relative happiness if you were the highest paid lawyer in your firm at a salary of

$200,000 compared with your happiness if you were the lowest paid at a salary of

$250,000.

Context is a powerful influence in our negotiation decisions. If you are negotiating

the settlement of a case, chances are that if you knew that you were receiving the

highest amount paid for a case in a comparable series of cases, you would be very

pleased to receive a settlement of $200,000. Contrast that feeling of satisfaction

with the way you would likely feel if you were to receive $250,000 along with the

knowledge that all of the cases in this series of cases had settled for between

$250,000 and $300,000. No doubt you would have difficulty appreciating the

economically superior result due to the psychological influence of context.

You will avoid poor decisions and help others make better ones if you understand

how context influences all of us in powerful and unconscious ways.

If you are interested in reading more, behavioral Economist Daniel Ariely, a

Professor at Duke University, has written a wonderful book exploring context and

other influences on our non-economic decisions. I highly recommend Predictably

Irrational (HarperCollins 2008). It is a fascinating read.

I hope you would like to receive additional negotiation tips. Please click on the

unsubscribe button if you would prefer not to. As always, I welcome your feedback.

Please write me at: JSJohnsen@jsjmediations.com

Avoiding Seller's/Buyer's Remorse View this email in your browser

Avoiding Seller's/Buyer's Remorse We might believe that if we negotiate a good result for our clients, that they will be

happy and appreciate our efforts on their behalf. We are surprised when in spite of

the favorable result obtained, we still have unhappy remorseful clients. The reason

may be that while we focused on obtaining a fair result we overlooked the need to

provide our clients with a process that they perceive as fair. Studies have

demonstrated that procedural fairness is as important if not more important than

the substantive outcome. Your client is more likely to question the result if he or

she believes that the process was unfairly administered.

Steven Blader a Professor of Management and Organizations in the NYU Stern

School of Business and Tom Tyler a Professor of Law and of Psychology at Yale

Law School have concluded that there are basically four criteria that influence the

perception that a process is fair. They are 1) the ability to be heard, 2) the

neutrality of the process; 3) adherence to formal rules and policies; and 4) respect

and the quality of treatment of the participants.

This helps to explain why in a mediation the parties should not only have an

opportunity to speak, but why you and others must take the time to listen and to

validate what is said. For the process to be fair, clients should fully understand the

rules especially those regarding confidentiality and ex parte communication with

the mediator. When explaining these rules highlight the fact that the rules will be

applied to all sides equally. Select fair, neutral mediators who will treat your clients

with respect. Set a positive cooperative tone with the other side to encourage

reciprocity towards you and your own client. Clarify with your clients that they bear

the ultimate responsibility for choosing to settle or to go forward, and that no result

will be imposed upon them by you, the mediator, or the other side. An

understanding of the connection between the process and the result may validate

your existing practice or encourage you to make some adjustments.

So if your objective is not only a good result, but also a happy client and a durable

agreement, focus on the process as well as on the result. For those interested in

reading the full article the cite is: Steven L. Blader & Tom R. Tyler, A Four

Component Model of Procedural Justice: Defining the Meaning of a "Fair" Process,

29 Personality & Soc. Psychol. Bull. 747 (2003).

I hope you would like to receive additional negotiation tips. Please click on the

unsubscribe button if you would prefer not to. As always, I welcome your feedback.

Please write me at: JSJohnsen@jsjmediations.com

Tips for breaking impasse. View this email in your browser

Respect and Trust as Impasse Breaking Techniques No one who voluntarily begins a negotiation or mediation wants to end with an

impasse. Breaking impasse is a holy grail of negotiation training and a popular

negotiation CLE topic. However, with a full blown impasse, these techniques often

fall short. I think that while negotiators should continue to learn these impasse

breaking techniques, their focus should be broader. Negotiators should also

expand their knowledge of strategies for avoiding impasse in the first place. One

way is to establish a good relationship of mutual trust and respect rather than a

competitive adversarial negotiation relationship.

Resuming negotiations following an impasse is challenging. When parties don't

trust one another, they may have difficulty getting back to the table after an

impasse blowup even when mutually acceptable settlement terms exist, and all

sides would benefit from reaching agreement. In a toxic atmosphere traditional

impasse breaking techniques are more likely to be ineffective. Establishing respect

and trust from the outset may help avoid an impasse altogether or get parties back

to the table following an impasse. Therefore, the correct question should not be

limited to how do you break impasse, but should include a discussion of ways in

which to anticipate and prevent impasse. One powerful tool is to establish a

respectful trusting relationship with one's adversary.

If you would like to read more about the importance of respect and trust and the

different ways they impact a negotiation, you may want to download a free copy

of The "Differential Roles of Respect and Trust on Negotiation" by Matthew Cronin

and Laurie Weingar. For a free copy register at http://ssrn.com, The link for the

article is. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=726183

I hope you would like to receive additional negotiation tips. Please click on the

unsubscribe button if you would prefer not to. As always, I welcome your feedback.

Please write me at: JSJohnsen@jsjmediations.com

What should you do about unreasonable expectations in a negotiation?

View this email in your browser

Should You Expect Unreasonable Expectations Even before a negotiation begins, negotiators often anticipate that a client or an

adversary has unreasonable expectations as to settlement value. When asked,

most would identify unreasonable expectations as the factor most likely to lead to

impasse. But unreasonable expectations are not limited to an unreasonable

adversary. Actually, we are all subject to subtle influences that completely distort

our perceptions. No one views the world through an unfiltered lens.

This thesis has been tested repeatedly with consistent results. In one study

discussed in a 2001 article in "ADR Currents" by Dwight Golann. Harvard law

students were divided into two groups and assigned the role of plaintiff's counsel or

defense counsel. They were then given an identical set of facts and asked who

would be most likely to prevail. In response to the question: Will the plaintiff win her

case? 65% of those Harvard Law students assigned the role of plaintiff's counsel

concluded that the plaintiff would win. Only 43% of those Harvard Law students

assigned the role of defense counsel thought the plaintiff would win.

How should negotiators deal with the knowledge that their perceptions as well as

those of their counterparties lack objectivity? Authors Jennifer Robbinolt and Jean

Sternlight in their book Psychology for Lawyers (ABA 2012) suggest that

knowledge of the influence of cognitive bias is not enough. They suggest that

there may be value in actively shifting perspective. Allow yourself to see the

strengths your adversary's case. Viewing your case from your adversaries

perspective gives you greater insight into your own case.