Corporate Decision-Making Negotiation Role-Play:

Fishladder Claim

Susan Podziba and Lawrence Susskind
Three-party, two-round internal negotiation among agency officials over whether to litigate or pursue non-binding arbitration to settle a contract claim against a private contractor

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SCENARIO:

The U.S. Agency of Engineers (Agency) contracted with Concrete Construction Company (CCC) to redesign and reshape the cement weirs of the west fishladder of the Arctic Lock and Dam. The cement work has to be done during harsh winter conditions because the fishladder is in use at all other times. Three bulkhead gates at the upstream entrance to the fishladder were expected to keep the work area virtually dry.

According to the contract, CCC was required to lower the bulkhead gates into their sealed position to assure that water did not flow into the fishladder and affect concrete placement areas. CCC failed to obtain a water-tight seal on one of the bulkhead gates and was plagued by water throughout the project.

After the contract work was completed by CCC and accepted by the government, the contractor filed a claim at the Federal Contract Appeals Court based on the bulkhead gates’ failure to provide a water-tight seal. CCC charges that according to the contract CCC had to “lower the gates in the sealed position.” CCC contended that it did so under the direction of Agency personnel. CCC claims that the Government’s property (i.e. the gates) malfunctioned due to insufficient maintenance and age. For these reasons, CCC charges that the government is liable for the delays and increased costs that resulted from unexpected water and ice in the cement placement area.

 

MECHANICS:

Preparation should take 30-45 minutes, as should the actual negotiation. Debriefing should take 45-75 minutes.

 

MAJOR LESSONS:

  • This exercise provides a useful context for thinking about the preparation required for ADR, knowing your BATNA, and for estimating the strength and weaknesses of your negotiation position.
  • When the intra-group negotiation is conducted by two or more groups simultaneously, the comparison of different outcomes and dynamics can be observed.

 

TEACHING MATERIALS:

For all parties:

  • General Instructions
  • Steps in non-binding Arbitration Process
  • Memo to the Chief of Construction and the District Engineer from the Chief District Counsel

 

Role specific:

  • Confidential and Supplemental Instructions for Chief of Construction
  • Chief District Counsel
  • District Engineer

 

Teacher’s Package:

  • All of the above
  • Teaching Note

 

THEMES:

ADR; Contracts; Construction; Intra-team negotiation; Meeting design; Negligence; Preparation; Joint gains; Litigation analysis; Information exchange; Interest analysis; Objective criteria; Options, generating; Systems of negotiation

 

Fishladder Claim Attributes

Time required:
1-2 hours
Number of participants:
3
Teams involved:
No
Agent present:
None
Neutral third party present:
None
Scoreable:
No
Teaching notes available:
Yes
PON Teaching Negotiation Resource Center

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For additional information about the soft copy option, please visit our FAQ section, or contact the PON Teaching Negotiation Resource Center at tnrc@law.harvard.edu or 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.).

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Ordering a single copy for review

If you wish to review the materials for a particular role simulation to decide whether you’d like to use it, then you should order a single Teacher’s Package for that role simulation. A PDF, or soft copy, version of the Teacher’s Package is also available as a free download from the description page of most role simulations and case studies. There is no need to order participant materials as well as a Teacher’s Package, as all Teacher’s Packages include copies of all participant materials. In addition, some Teacher’s Packages (but not all) include additional teaching materials such as teaching notes or overhead masters. Please note that the materials in Teacher’s Packages are for the instructor’s review and reference only, and may not be duplicated for use with participants.

Ordering copies for multiple participants

If you wish to order multiple copies of a role simulation for use in a course or workshop, simply enter the total number of participants in the box next to “Participant Copies.” There is no need to calculate how many of each role is required; the Teaching Negotiation Resource Center will calculate the appropriate numbers of each role to provide, based on the total number of participants. For example, if you wish to order a 2-party role simulation for use with a class of 30 students, you would enter “30” in the box next to “Participant Copies.” You then would receive 15 copies of one role and 15 copies of the other role, for use with your 30 participants. As another example, if you ordered 30 participant copies of a 6-party role simulation, you would receive 5 copies of each role.

In the event that the number of participant copies you order is not evenly divisible by the number of roles in the simulation, you will receive extra copies of one or more roles. Participants receiving the extra roles may partner with other participants playing the same role, thus negotiating as a team. So, for instance, if you ordered 31 copies of a 2-party role simulation, you would receive 15 copies of the first role and 16 copies of the second role. One of the participants playing the second role would partner with another participant playing that same role, and the two would negotiate as a team.