The transfer of an agreement from negotiators to lawyers or other professional deal drafters can introduce three main types of mistakes. Read on to discover how you can avoid making these same mistakes at the bargaining table during your next dealmaking negotiation session.
litigation
A formalized legal process to resolve a dispute through legal action in the form of a lawsuit. It often entails a contractual issue. It is the act of either bringing or challenging a lawsuit. (from www.negotiations.com/definition)
The following items are tagged litigation.
Dealmaking: What to Do After the Deal Breaks Down
Even with these precautions in place, there will be times when one side demands renegotiation of a deal. Here are some guidelines on how to proceed.
Exclusive Negotiation Periods
The clearest method for achieving exclusivity is an exclusive negotiating period, during which both sides agree not to talk to third parties, even if approached unexpectedly by others. In some arenas, these terms are called no-talk periods.
What to Do Before the Deal Breaks Down
Whenever one side fails to meet its contractual obligations, renegotiation is more likely to succeed if the parties have a strong relationship. Ideally, the aggrieved party will value long-term relations more than potential gains from a claim for breach of contract. For example, a bank will be more willing to renegotiate a loan with a delinquent debtor when the prospect of future business with the debtor is likely. Bondholders of the same debtor, on the other hand, will generally be more resistant to renegotiation, as they tend to lack opportunities for a profitable future business relationship.
Negotiate, Don’t Litigate
When you’re thinking about resolving a dispute in court, it’s crucial to remember that the decision that will be imposed on you is binding.
If blinders lead a judge to grant a motion that should be denied, deny a motion that should be granted, assign responsibility to the wrong party, or award too much or too little in damages, there can be no going back.
Keeping the Game Out of Court
Sometimes those on opposite sides of a bitter dispute can achieve great gains – if only they can spot the ways in which they are similar.
In 2001, the Metropolitan Intercollegiate Basketball Association (MIBA), an organization of five New York-area colleges best known for staging college basketball’s National Invitation Tournament, filed a lawsuit against the National Collegiate Athletic Association (NCAA). MIBA allege that certain NCAA rules governing team participation in preseason and postseason tournaments restricted school’s participation in MIBA tournaments, in violation of various antitrust laws. After four years of litigation, the two parties announced not only that they would settle a lawsuit but also that the NCAA would purchase the rights to the MIBA preseason and postseason tournaments.
David A. Hoffman
David A. Hoffman is an attorney, mediator, arbitrator, and founding member of Boston Law Collaborative, LLC. David teaches the Mediation course at Harvard Law School, where he is the John H. Watson Jr. Lecturer on Law, and co-teaches the Mediation course at the Harvard Negotiation Institute of the Program on Negotiation. He has also been the lead trainer in several mediation trainings for the American Bar Association.
Using Mediators to Resolve Disputes
You’ve seen how mediators can help one organizational team prepare for a complex negotiation. But what about when litigation looms?
Penguin Sues Its Own Writers: When Business Negotiations Become Bad PR
In this business world, it’s typically smart practice to keep disputes with key partners private, at least until doing so becomes unfeasible for financial or other reasons. That’s why the book publisher Penguin’s decision to file lawsuits against 12 of its authors for breach of contract is being widely judged as a public relations misstep.
Mediation, Arbitration, and the Promise of Privacy
Negotiators often choose to resolve their conflicts through mediation, arbitration, and other alternative dispute resolution methods because of the privacy these methods promise. Unlike the public nature of litigation, mediation and arbitration typically give parties the freedom to hash out sensitive issues without the fear that their discussions and agreement will become public knowledge. Two new cases in the news, however, show that privacy is a nuanced issue in some alternative dispute resolution contexts.
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