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            ii. Legal Negotiation
            The last step in the negotiation process is to secure a commitment regarding a future course of action.   During the closing, the negotiator can utilize the psychological dimension of scarcity, for example, to trigger the “Act Now” mentality.   Moreover, if the negotiation is not naturally reaching a conclusion, the negotiator needs to make the other party aware of looming deadlines.   A deadline creates a sense of urgency and establishes boundaries in which the opposition must act.   The final step of commitment is one that must be done with as much skill and strategy as the previous three steps because  “[w]here the most work gets done in the final five minutes of a 30-minute session, seasoned mediators and mediation advocates know that the closing moments of mediation are often the most fluid and productive.”  
            Unlike hostage negotiations, if necessary, the lawyer negotiator can step away from the situation.  If the negotiation reaches impasse, an effective negotiator will back away but leave herself a way to get back – “In light of the position you have taken, we are unable to continue negotiations at this time.”  
            Regardless of how a commitment is achieved, a lawyer negotiator will likely never know whether he was truly successful.  The closest a lawyer negotiator can come in determining her effectiveness is to measure whether the client is happy or if the agreement produced results far better than the BATNA.  Yet, in most situations the lawyer will never be able to determine just how much the other party was truly willing to spend or just how many more concessions they would have given.  The inability to measure effectiveness in legal negotiations distinguishes it from hostage negotiations that are reasonably quantifiable.  Therefore, the next section will explore the effects of measuring (or the inability to measure) the effectiveness of negotiators in obtaining the best possible closing.

VIII. Measuring the Effectiveness of Negotiations

            Despite the extensive literature devoted to every facet of negotiation – only minimal information is available regarding the effectiveness of negotiations.  The reader is left to assume that once the Commitment phase is accomplished – the negotiation is done.  However, the ability to reflect upon the effectiveness of a negotiation will not only lead to better negotiations in the future, but it will actually shape the current negotiation.  In hostage negotiations, success is based upon the number of lives saved or injuries prevented.  However, in legal negotiations – there is not one definable method to objectively measure effectiveness.  Instead, the negotiator is left to subjectively analyze their efficiency by evaluating the client satisfaction, and whether the negotiation delivered better results than the BATNA.


Shell, supra at 175-76. 

Id. at 178-79. 

Id. at 179. 

Peter N. Thompson, Disputing Irony:  A systematic Look at Litigation About Mediation, 11 HVNLR 43, 142 (Spring 2006). 

Shell, supra at 188 (emphasis added).

South Carolina Crisis Negotiators Association, Recommended Negotiations Guidelines and Policies, (2001) at http://www.sccna.com/ncna.htm.   

 

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May 2007