It’s Complicated: Reflections on Teaching Negotiation for Women

What does it mean to be a woman negotiator? In the two decades that I have been teaching negotiation, I have encountered a wide range of human behavior in the negotiation setting. Individuals run the gamut in terms of their strategies, tactics, worldviews, charisma, perspicacity, flexibility, and other factors that affect negotiation behavior and negotiation outcomes. But one area that negotiation students are always curious about—be they top executives, law students, government employees, lawyers, or doctors—is the role of gender in negotiation. The maddening but intriguing answer to this question is the same as the answer to many other questions about negotiation: it’s complicated. The most important quality of negotiation is its dynamic and fluid nature, each encounter completely unique to its own participants and its own contexts, yet always with the possibility of analysis along a set of identifiable dimensions

The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act

The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury\u27s damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors\u27 judgment about damage awards, and discuss how those awards might be changed if jurors were informed of the caps. Second, we discuss the potential effects that such secrecy has on perceptions of the legitimacy and fairness of the jury system, through its impact on parties, attorneys, and jurors. We conclude, in light of relevant psychological literature, that disclosure of the caps is likely to affect the jury\u27s decision-making process, but that non-disclosure has the potential to threaten the integrity of the jury system more broadly, because hiding the caps could result in a failure of procedural justice that would affect the integrity of the judicial process. Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system

The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act

The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury\u27s damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors\u27 judgment about damage awards, and discuss how those awards might be changed if jurors were informed of the caps. Second, we discuss the potential effects that such secrecy has on perceptions of the legitimacy and fairness of the jury system, through its impact on parties, attorneys, and jurors. We conclude, in light of relevant psychological literature, that disclosure of the caps is likely to affect the jury\u27s decision-making process, but that non-disclosure has the potential to threaten the integrity of the jury system more broadly, because hiding the caps could result in a failure of procedural justice that would affect the integrity of the judicial process. Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system

The House, and How to Run It

Ball’s portrait of Pelosi’s life in politics is a detailed and exhaustive exploration of Pelosi’s life in politics–an important project that fills a needed gap. But the very nature of the book reveals, first, that the role of gender in negotiation is complex, and Ball’s handling of the issue represents a meta-commentary on the challenge of understanding it. Second, the book helps illuminate that Pelosi’s consistent negotiation success has been achieved not through magic and charisma but through hard work and preparation, an ethos of brass tacks politics that she learned growing up in a political household. And this version of political prowess is not always an exciting or compelling story to the casual eye. Finally, perceptions about hard work, preparation, magic, charisma, and success can itself carry gendered implications for how we understand the work of excellent negotiators and successful leaders

Taking Human Behavior Seriously: Commentary on “Bargaining in the Shadow of the Law”

Abstract of the complete monograph: While arbitration was robust in colonial and early America, dispute resolution lost its footing to the court system as the United States grew into a bustling and burgeoning country. And while dispute resolution processes emerged briefly from time to time, they were dormant until the enactment of the Federal Arbitration Act and collective bargaining grew out of the labor movement. But it wasn\u27t until 1976, when Frank Sander delivered his famous remarks at the Pound Conference, that the modern dispute resolution movement was born. By the year 2000, alternative dispute resolution had transformed from a populist rebellion against the judicial system to mainstream legal practice. Today, lawyers and retiring judges look to arbitration and mediation for a career pivot, and law schools train law students in the finer arts of dispute resolution practice as both providers and advocates. Discussions in Dispute Resolution brings together the modern dispute resolution field\u27s most influential commentaries in its first few decades and reflects on what makes these pieces so important. This book collects 16 foundational writings, four pieces from each of the field\u27s primary subfields--negotiation, mediation, arbitration, and public policy. Each piece has four commenters who answer the question: why is this work a foundational piece in the dispute resolution field? The purpose in asking this simple question is fourfold: to hail the field\u27s foundational generation and their work, to bring a fresh look at these articles, to engage the articles\u27 original authors where possible, and to challenge the articles with the benefit of hindsight. Where possible, the book gives the authors of the original pieces the opportunity either to reflect on the piece itself or to respond to the other commenters

The Effects of Jury Ignorance About Damage Caps: The Case of the 1991 Civil Rights Act

The 1991 Civil Rights Act revolutionized employment discrimination litigation by allowing for compensatory and punitive damages. At the same time, however, the Act capped those damages and forbade courts from informing jurors about the cap. This Article explores the effects of this imposed secrecy on the jury deliberation process and on the jury system itself. First, our article delves into the wealth of psychological literature about jury decision-making to determine how disclosing or hiding the caps might affect the jury\u27s damage calculations. We explore decision-making biases and heuristics that might systematically affect the jurors\u27 judgment about damage awards, and discuss how those awards might be changed if jurors were informed of the caps. Second, we discuss the potential effects that such secrecy has on perceptions of the legitimacy and fairness of the jury system, through its impact on parties, attorneys, and jurors. We conclude, in light of relevant psychological literature, that disclosure of the caps is likely to affect the jury\u27s decision-making process, but that non-disclosure has the potential to threaten the integrity of the jury system more broadly, because hiding the caps could result in a failure of procedural justice that would affect the integrity of the judicial process. Ultimately, we argue that disclosing the caps, particularly if included within a framework of additional information about the purpose of compensatory and punitive damages, would result in better jury awards and more public satisfaction with the judicial system

The Market as Negotiation

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated. This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays in different types of marketplaces. Establishing the concept of negotiation variance, we create a preliminary taxonomy of factors that shape such variance and examine the differences between markets as to the effects that negotiation can have on transactions. In markets with high negotiation variance, parties can use their negotiation effectiveness to get much better deals. Although the law has not generally recognized negotiation’s role in markets explicitly, judges and policymakers have at times taken negotiation variance into account implicitly, making exceptions to standard doctrines to accommodate unbalanced outcomes. The Article examines the doctrines of common-law contract that reflect an understanding of negotiation’s impact, as well as exploring three particular markets where high-variance negotiation has a significant role: lawsuit settlements, corporate control, and employment. These examples show how the law takes negotiation variance into account and illustrates the challenges in developing a response to individual negotiation differences across markets