Negotiating Virtually: Overcoming Challenges Posed by the COVID-19 Pandemic

• 1 Introduction

  When the COVID-19 pandemic rippled across the world in early 2020, essentially every aspect of day-to-day life was upended in its wake. Offices shut down, and professions that once seemed unsuited for working from home were forced to adapt to the virtual environment. Nearly everything has shifted online, including dispute resolution processes like negotiation and mediation.¹xSee Meredith McBride, ODR in the Era of COVID-19, ABA (27 October 2020), www.americanbar.org/groups/family_law/committees/alternative-dispute-resolution/odr. Online dispute resolution (ODR) has been an option for many years, and negotiators frequently use telephone and email to resolve issues.²xSee id. Having the entire process transported to the virtual sphere, however, is unprecedented.³xSee id. COVID-19 has forced negotiators to hone and adapt their routine to accommodate our almost entirely virtual new world.
  Despite the change in environment, the basic elements of a successful negotiation have remained the same. Essential aspects of any negotiation include (1) proper preparation,⁴xSee, e.g., Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo. L.J. 1789, 1794 (2000) (observing that “painstaking preparation is critical to success at the bargaining table”). (2) building trust and rapport with one’s counterpart⁵xSee, e.g., Janice Nadler, Rapport in Negotiation and Conflict Resolution, 87 Marq. L. Rev. 875, 875 (2004) (noting that rapport is a key element of a successful negotiation). and (3) time.⁶xSee, e.g., Nancy Neal Yeend, Three Key Factors to Successful Negotiation, Plaintiff Mag., November 2017, at 32. Any skilful negotiator does not come to the table unprepared. Important aspects of preparation include background research, meeting with one’s client and determining the ‘bargaining zone’.⁷xSee Korobkin, supra note 4, at 1792. Building rapport and trust is essential to enhance communication during a negotiation and is also beneficial for future interactions.⁸xSee Nadler, supra note 5, at 876-877. As a negotiator, relationships and reputation are very important, and developing mutual trust and respect is crucial to further these objectives.⁹xSee id. at 879. Finally, setting aside plenty of time for the negotiation to run its course is essential. Dedicating time to preparation and the negotiation itself ensures that all possible avenues are explored and that each party’s interests are fulfilled to the extent possible.¹⁰xSee Myles P. Hassett, Negotiating to Win-Win, Ariz. Att’y, November 2019, at 42. These three factors are critical to any successful negotiation, regardless of whether it is conducted in person or online.
  ODR originated to keep up with our rapidly changing society, even before COVID-19, and should not necessarily be seen as an obstacle. In fact, ODR has proven to be quite effective in many respects. Efficiency is one of the primary advantages of ODR because it often saves time and is less costly.¹¹xSee Joseph W. Goodman, The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites, Duke L. & Tech. Rev., 18 February 2003, at 2. Negotiating online can also save parties from the hassle and cost of travelling to an in-person meeting.¹²xSee McBride, supra note 1. Although ODR does have some advantages, it can also pose significant challenges, especially for those who are not used to the format.¹³xSee Paul Fisher, Eight Things to Know About the Art of Virtual Negotiation, Oxford Answers (25 November 2020), www.sbs.ox.ac.uk/oxford-answers/eight-things-know-about-art-virtual-negotiation. Taking note of these issues is especially important in the present era of COVID-19 because being aware of them can help negotiators navigate the virtual world more skilfully.¹⁴xSee id. Some of the frequently cited disadvantages of ODR include (1) the inability to adequately prepare one’s client (sometimes due to inaccessibility issues);¹⁵xSee McBride, supra note 1. (2) the impersonal nature of video conferencing, which leads to difficulty building rapport¹⁶xSee Goodman, supra note 11, at 21. and (3) the difficulty in keeping video calls on track and sticking to a negotiation’s objectives.¹⁷xSee Mladen Kresic, Virtual Negotiations Are Here To Stay—Now What?, Forbes (23 March 2021, 8:00 AM), www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2021/03/23/virtual-negotiations-are-here-to-stay---now-what/?sh=21c9088f6670.
  This essay proposes solutions to overcome the impediments that may arise while negotiating in a virtual environment. Part I illustrates the necessary elements of any successful negotiation. In Part II, this essay considers some of the positive and negative aspects of negotiating virtually. Part III suggests some practical advice for navigating ODR successfully in our new virtual world.

• 2 Important Ingredients for a Successful Negotiation Recipe

  Regardless of the format, the most important elements of a successful negotiation remain the same. Any productive negotiation will include (1) proper preparation,¹⁸xSee Korobkin, supra note 4, at 1794. (2) building trust and rapport with one’s counterpart¹⁹xSee Nadler, supra note 5, at 875 and (3) time management.²⁰xSee Yeend, supra note 6, at 32. In a virtual world, negotiators need to be even more mindful of these factors to ensure they are not overlooked.

  2.1 Preparation

  It is in anyone’s best interest to come to an important meeting prepared, but it is especially imperative for negotiators who are representing a client’s interests. Preparation for a negotiation can take many forms, most important of which include performing research on the issues, brainstorming options, meeting with one’s client and determining one’s bargaining zone.²¹xSee Donald G. Gifford, The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context, 34 UCLA L. Rev. 811, 844 (1987) (advising that lawyers have an extensive “counseling session” with their clients before a negotiation); Korobkin, supra note 4, at 1794-1797 (noting that negotiators should perform “internal” and “external” research to determine their client’s options, BATNA, and bargaining zone). If a negotiator does all of these things before meeting with their counterpart, they are putting themselves in the best position to zealously represent their client’s interests.
  When a lawyer takes on a client, with or without the end goal of negotiation in mind, it is important to embrace the role of counsellor.²²xSee Jean R. Sternlight & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counseling Clients, 23 Ohio State J. Disp. Resol. 437, 538-539 (2008). Any good counsellor begins with the basics and attempts to learn all of the background information from their client that may be helpful to resolving the dispute.²³xSee Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754, 801 (1984). In the initial interview, a lawyer should strive to understand the interests and objectives of not only their client but also those of any other parties involved.²⁴xSee id. at 801-804 (noting that the lawyer should determine the “needs or objectives” of her client and those of the other parties). This process will involve asking questions to identify the financial, legal, interpersonal and ethical issues involved.²⁵xSee id. Preliminary meetings between lawyer and client also provide an opportunity for the two to build trust and develop a relationship, especially if they have not worked together in the past.²⁶xSee Sternlight & Robbennolt, supra note 22, at 539-544. Once the lawyer feels as though they have a sufficient understanding of the client’s interests, the next step involves research and brainstorming to determine what options are available to the client.²⁷xSee Menkel-Meadow, supra note 23, at 804-805.
  There is a ‘cyclical’ nature to client interviewing and negotiation.²⁸xSee Gifford, supra note 21, at 829 (“Negotiation on behalf of clients inevitably involves counseling, and the interrelationships between the two processes must be accounted for if lawyering models are to describe realistically client representation or provide useful guides for lawyering behavior”.). The lawyer gains information from the client, uses that information to fuel their research and brings their findings back to the client.²⁹xSee id. at 845-846. After the initial consultation with a client, the lawyer may begin to consider the available options, including whether a negotiated agreement is the best solution.³⁰xSee Korobkin, supra note 4, at 1794-1795. Should the lawyer determine that negotiations are in the client’s best interest, it is crucial that they also establish the best alternative to a negotiated agreement (BATNA).³¹xSee id. at 1795. Knowing one’s BATNA is imperative because it allows the lawyer to determine their reservation price, which in turn helps define the bargaining zone.³²xSee id. at 1796-1797 (“A party’s RP has two components: (1) the market value of his BATNA; and (2) the difference to him between the value of his BATNA and the value of the subject of the negotiation”.). Considering all of the alternatives to a negotiated agreement allows the negotiator to determine their reservation price which “is of critical importance because without a precise and accurate estimation of his RP the negotiator cannot be sure to avoid the most basic negotiating mistake – agreeing to a deal when he would have been better off walking away from the table with no agreement.” Id. at 1797. By determining one’s own reservation price and estimating the other party’s reservation price, a negotiator can set their bargaining zone – the range within which they are willing to come to an agreement. See id. at 1797-1798. In brainstorming options and calculating the bounds of one’s bargaining zone, it is vital to be creative, remain flexible and consider all of the facts available to ensure that the client’s interests are being served as diligently as possible.³³xSee id. at 1795.
  Performing external research and identifying objective criteria to legitimize one’s position is also very important in preparing for negotiations.³⁴xSee Roger Fisher, William Ury, & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving 86-89 (3rd ed. 2011). This can involve looking to “market price, historic price, historic profit level or some conception of merit ….” as well as judicial or deal precedent and established norms.³⁵xSee Korobkin, supra note 4, at 1825-1829. Utilizing objective criteria facilitates agreements because the tactic allows both parties to situate their dispute using standards they believe are fair.³⁶xSee id. at 1826. A lawyer should be prepared with objective criteria when entering into negotiations to legitimize their client’s position and persuade the other side that that position is the most fair and equitable one available.³⁷xSee Menkel-Meadow, supra note 23, at 816.
  Once a lawyer has done their own analysis, they may go back to the client to prepare for negotiations. The lawyer should explain their research and give the client an idea of their BATNA.³⁸xSee Gifford, supra note 21, at 844-845. Together, the lawyer and client should agree that this would be the best alternative outcome to a negotiated agreement and analyse the potential consequences, legal and otherwise, of taking such a route.³⁹xSee id. Additionally, the lawyer should confirm the extent of the authority their client wishes them to have.⁴⁰xSee id. at 847-849 (“The type of authority a client delegates to the lawyer ranges from unlimited authority, which gives the lawyer carte blanche to enter into an agreement on behalf of the client, to “open authority”, which authorizes the lawyer to negotiate, but does not give her any authority to enter into a binding agreement”.). This is important because it changes the structure of the negotiations as well as the lawyer’s own negotiating tactics.⁴¹xSee id. Once a lawyer has established the client’s objectives, they may proceed to negotiation. The cycle of client counselling and negotiation may continue until a satisfactory outcome is reached.⁴²xSee id. at 833 (noting that negotiations do not necessarily resolve the issue during one meeting and often occur “over an extended period of time”). In any event, it is critical that the lawyer prepares for any possible scenario to ensure that the negotiations are a success.

  2.2 Relationships

  Relationships are very important in negotiations, whether during a particular negotiation or in the future. People are generally more willing to work with someone they like and to whom they feel connected, so it is in a negotiator’s best interest to try to develop a rapport with their counterpart(s).⁴³xSee Leigh Thompson, The Mind and Heart of the Negotiator 134-142 (5th ed. 2012). There are various psychological and communication tactics that negotiators can employ to help build relationships with their peers.⁴⁴xSee id.; Roger Fisher & Wayne H. Davis, Six Basic Interpersonal Skills for a Negotiator’s Repertoire, 3 Negot. J. 117, 117 (1987). Putting effort into relationships in the present helps to build a positive reputation for oneself, leading to more successful negotiations in the future.⁴⁵xSee Catherine H. Tinsley, Jack Cambria, & Andrea Kupfer Schneider, Reputations in Negotiation, in The Negotiator’s Fieldbook 203-208, 211-212 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006) (finding that negotiators with ‘integrative’ reputations, i.e., those willing to “cooperate, problem-solve, be trustworthy and compassionate, create joint value, or generally get a deal that works for both (or all) parties”, tend to achieve better outcomes and are perceived in a positive light by their counterparts).
  Negotiators can use psychological techniques to build rapport and trust with the other side. First, it is useful to find things in common with one’s counterpart; people are more flexible when negotiating with individuals who are similar to themselves.⁴⁶xSee Thompson, supra note 43, at 134-142. Tactful negotiators will attempt to make themselves similar to the other side to build rapport and increase the likelihood of a positive outcome.⁴⁷xSee id. Another way to build rapport with other negotiators is to make oneself familiar to them.⁴⁸xSee id. “The more we are exposed to something – a person, object, or idea – the more we come to like it ….”⁴⁹xId. By increasing the amount of interactions one has with a counterpart, they increase the likelihood of a positive relationship.⁵⁰xSee id. Being personable and agreeable when meeting with other parties can also help to build rapport and trust.⁵¹xSee id. Additionally, “[a]ccording to the reciprocity principle, we feel obligated to return in kind what others have offered or given to us ….”⁵²xId. Based on this principle, if one makes concessions or does a favour for the other side, they will feel more compelled to do the same in return.⁵³xSee id. Being cooperative and flexible in a negotiation can therefore encourage the other side to act in the same way. Flattery and small talk can also be highly beneficial when trying to develop a relationship with the other side because people tend to like and trust people who hold them in high regard.⁵⁴xSee id. Finally, ‘sharing information about oneself’ with one’s counterpart can help to build a relationship because it shows vulnerability and trust.⁵⁵xSee id. This kind of information sharing encourages the other side to do the same and trust that the information will not be exploited.⁵⁶xSee id. These psychological techniques can help negotiators build a relationship with their counterpart and encourage an environment of mutual trust and respect, which is hugely beneficial in negotiations.
  Communication is a huge part of relationship building, and solid interpersonal skills are crucial to any successful negotiation. Using certain interpersonal skills in tandem with the psychological tactics listed above can help negotiators develop amicable, trust-based relationships. Active listening is one of the most important parts of any negotiation because understanding what the other party is saying is essential to coming to a deal that suits everyone.⁵⁷xSee Fisher & Davis, supra note 44, at 121 (recommending setting aside plenty of time for each side to explain their version of the story; making sure you understand the other side’s arguments before responding; repeating the other side’s assertions back to them; and actively trying to understand the reasoning behind a party’s arguments to increase opportunities for different and useful solutions). Listening also means being aware of the other side’s body language and other non-verbal cues.⁵⁸xSee Alain Burrese, Listen Up, Mont. Law., Sept. 2006, at 22 (stating that certain non-verbal signs like tone of voice and body language can convey messages like uncertainty and deceit); Susan Nauss Exon, The Next Generation of Online Dispute Resolution: The Significance of Holography to Enhance and Transform Dispute Resolution, 12 Cardozo J. Conflict Resol., 19, 23 (2010) (“Some psychologists estimate that seventy to eighty percent of communication comes from nonverbal cues”.). Truly listening to the other side can prevent misunderstandings and eventually lead to a more thoughtful solution that works for all parties.⁵⁹xSee Burrese, supra note 58, at 22 (“[I]f you’re going to convince someone to agree to your terms in negotiations, the first step is to listen”.). Showing empathy and being attuned to the other side’s emotions is also an effective way to build rapport and trust.⁶⁰xSee Rebecca Hollander-Blumoff, Novel Negotiation, J. Disp. Resol., Spring, 2017, at 69. Putting oneself in the other party’s shoes can help to illuminate their interests and objectives and therefore lead to a more fruitful agreement.⁶¹xSee Moty Cristal, Negotiating in a Low-to-No Trust Environment, Alts. High Cost Litig., December 2018, at 165. Using these interpersonal skills can help build trust and rapport with the other side and can be critical to reaching an agreement. These psychological and interpersonal tactics are not just vital to a positive negotiation experience, they also help to develop one’s reputation within the field.⁶²xSee Tinsley, Cambria, & Schneider, supra note 45. In this way, these skills are crucial for negotiators in both the short term and the long term.

  2.3 Time

  There is a fine balance in negotiations between giving the parties enough time to lay everything on the table and drawing out a resolution unnecessarily. It is essential for the parties to allocate enough time for the negotiations so that each issue can be meaningfully addressed.⁶³xSee Yeend, supra note 6, at 32. Some, maybe most, negotiations will take an extended period of time, and one meeting will not be sufficient to resolve the dispute.⁶⁴xSee Gifford, supra note 21, at 832-833. Time limits may also be imposed to ensure no party takes advantage of another.⁶⁵xSee Cecilia Albin, The Role of Fairness in Negotiation, 9 Negot. J., 223, 228 (1993). Additionally, addressing certain issues ahead of time and setting an agenda for a negotiation can help keep things on track and ensure that enough time is allotted for each issue.⁶⁶xSee id. at 227-228 (describing “agenda-setting” as a method of ensuring procedural fairness in negotiation, as long as all parties have equal input); Yeend, supra note 6, at 32. Meeting with the other side ahead of the negotiations to create the agenda is a good idea to ensure that everyone agrees upon the issues to be addressed and the time allocated to discuss each one.⁶⁷xSee Albin, supra note 65, at 227-228. Ensuring that there is plenty of time to discuss the issues and an agreed-upon order in which to do so helps to eliminate confusion and promote efficiency in negotiations.

• 3 Pros and Cons of Virtual Negotiations

  ODR arose in the 1990s to keep up with a rapidly changing world.⁶⁸xSee McBride, supra note 1. Despite having been around for a few decades, ODR was not as widespread as one might think until COVID-19 thrust it into the spotlight. The recent rise in ODR is not necessarily a purely negative occurrence. ODR has plenty of advantages that make it a desirable choice for many parties. There are some disadvantages, however, which are more evident when an involved party has little experience with or lacks access to the requisite technology.

  3.1 Advantages

  Perhaps the most often mentioned advantages of ODR are its efficiency and convenience.⁶⁹xSee id. Virtual dispute resolution is more cost and time efficient than in-person processes.⁷⁰xSee id. For one, the virtual venue eliminates travel costs and time for the parties because they can participate from pretty much anywhere; it also reduces the amount of time spent on coordinating the location and time of a meeting.⁷¹xSee Jeff Trueman, Cecilia B. Paizs, & John Greer, No Need To Panic: Online Dispute Resolution Works, 2 Md. Bar J., 140, 143 (2020). ODR can also increase access to dispute resolution, especially for petty disputes.⁷²xSee Kyle Bailey, Online Dispute Resolution: A Primer, Mediate.com (Feb. 2020), www.mediate.com/articles/bailey-primer.cfm. For some parties, the cost and time required to resolve their dispute in-person may outweigh the ultimate benefit, especially if it requires them to take time off work that they cannot afford. Additionally, communicating over the internet allows for documents to be reviewed using screen sharing and signed electronically.⁷³xSee id. This saves parties from having to make a trip just to look over and sign a document.⁷⁴xSee id. As a whole, ODR allows for more flexibility and costs less overall than other dispute resolution processes, including traditional litigation.⁷⁵xSee id. Particularly, throughout COVID-19, ODR has been crucial to resolving disputes while still following government-mandated pandemic guidelines.⁷⁶xSee McBride, supra note 1.

  3.2 Disadvantages

  Although ODR has several distinct advantages, it also comes with some challenges. Some of the most commonly cited disadvantages of ODR are that lawyers are unable to adequately prepare their clients, video conferencing hinders effective communication and the nature of video calls makes it more difficult to manage the objectives of the process.⁷⁷xSee id.; Goodman, supra note 11, at 21; Kresic, supra note 17. In some ways, ODR may increase accessibility to the dispute resolution system because participating virtually is easier and more efficient.⁷⁸xSee Bailey, supra note 72. In other ways, however, ODR severely limits accessibility because many people do not have access to the requisite technology, do not have reliable internet access or are simply unfamiliar and uncomfortable with technology.⁷⁹xSee McBride, supra note 1; Exon, supra note 58, at 34. This can hinder a party’s ability to meaningfully participate in the dispute resolution process as well as a lawyer’s ability to adequately prepare their client. As discussed above, preparation is critical to a successful negotiation. Although much of the groundwork can be done using other means like telephone or email, those with limited access are disadvantaged because their ability to develop a trusting relationship with their lawyer is inhibited.⁸⁰xSee Cortney E. Young, Revelations in Online Dispute Resolution: Lessons Learned in Catastrophe Can Lay Foundation for Tomorrow’s Success, A.L.I., 26 January, 2021.
  Negotiating virtually poses serious problems for effective communication. Technology presents its own set of issues because delays in audio and video and connectivity problems can thwart a successful meeting.⁸¹xSee Exon, supra note 58, at 34. In addition to the technological complications are the interpersonal ‘social costs’ of virtual negotiations.⁸²xSee id. at 35. Body language and other important non-verbal cues may go unnoticed in the virtual sphere.⁸³xSee id. (“[T]he video camera may not pick up someone twitching and playing nervously with a pen if the camera is focused on a person’s upper torso. It will be difficult for someone to get up and pace around the room as he is contemplating something because he will not be picked up by the camera”.). It is generally more difficult for people to pay attention during video conferences, and the risk of distractions is very high; this can cause disruptions in the flow of conversation or cause a party to miss important discussions.⁸⁴xSee Kresic, supra note 17. In addition, the potential for distractions makes it very difficult for a party to actively listen to the other side.⁸⁵xSee id. These impediments make it very challenging to successfully develop trust and rapport in the virtual sphere, which in turn hinders a negotiator’s ability to develop a positive reputation. Effective communication is crucial to any successful negotiation and is seriously threatened by ODR.
  Finally, the virtual setting poses great challenges for the time management aspect of negotiations. The risk of distractions and the tendency for parties to multitask during video conferences make it very difficult to keep a negotiation on track.⁸⁶xSee id. Moreover, the potential for internet fatigue can affect parties’ attention spans and cause negotiations to take longer than they would in person.⁸⁷xSee Young, supra note 80. Complex negotiations tend to take up more time when they are conducted virtually, meaning that lawyers and clients have to allocate more time than they normally would for each negotiation.⁸⁸xSee id. This can result in a decrease in lawyers’ productivity and cause scheduling issues.⁸⁹xSee id. Managing time is a huge part of productive negotiations, and ODR poses significant problems for this essential element.

• 4 How to Make the Most of the Virtual World

  To overcome the disadvantages of ODR that may hinder the essential elements of a successful negotiation, there are certain steps parties can take to ensure that virtual negotiations and other dispute resolution processes go just as smoothly as those held in person. Taking into account the three critical elements of any successful negotiation outlined above as well as the challenges ODR poses for those three elements, negotiators can develop solutions to get around the roadblocks.

  4.1 Solutions for Client Preparation

  Nothing will replace in-person interaction with a client, but there are ways that negotiators can actively try to replicate it. To remedy the problem of inadequate preparation and rapport, negotiators can try to meet with their clients more times than they might normally to attempt to build a good relationship. This goes for meeting with the other parties as well. Lawyers may wish to do more of the work ahead of a negotiation to limit the issues discussed in the actual meeting.⁹⁰xSee Young, supra note 80. The accessibility problem might not be amenable to a complete remedy, but attorneys can provide clients with the proper technology to participate in the negotiation, if necessary.⁹¹xSee McBride, supra note 1. Additionally, lawyers can ensure that their clients understand how to use a programme by going over it with them in detail and confirming that they can access the platform.⁹²xSee id. By increasing access and putting more effort into one’s relationship with their client, a virtual attorney–client relationship can start to look more like an in-person one.

  4.2 Solutions for Trust and Rapport

  Just like meeting with one’s client, meeting with the other parties more than might be necessary for an in-person negotiation can help to develop the relationship without the pressure of formal negotiation. It is even more essential to take the time to get to know one’s counterparts and establish similarities when negotiating in the online sphere.⁹³xSee Fisher, supra note 13. Communicating clearly and listening actively become vastly more important during virtual negotiations, as statements and emotions are much more likely to be overlooked or misunderstood.⁹⁴xSee id. Repeating things back to others to ensure that it is being understood correctly becomes even more critical.⁹⁵xSee Fisher & Davis, supra note 44, at 121. Routinely checking in with the other side to make sure nothing goes unaddressed can also help to develop a feeling of understanding and respect.⁹⁶xSee Fisher, supra note 13. Clarity is critical in the online sphere, so it is helpful to make sure everyone is on the same page. It can also be useful to have one person take extensive notes on the meeting to ensure that the terms are memorialized in writing.⁹⁷xSee id. Other steps can be taken to imitate some of the non-verbal cues that might be lacking in the virtual sphere, such as nodding to let the other side know you are listening or making eye contact with the camera when speaking. Taking some of these measures can help to develop rapport and trust in an environment that is wanting in interpersonal connection.

  4.3 Solutions for Time Management

  Before a meeting, it is important to outline the issues to be addressed and create an agenda, noting the time to be allocated to each individual issue.⁹⁸xSee Albin, supra note 65, at 227-228. Creating this kind of roadmap for the negotiation can ensure that everything moves along as smoothly as possible. Having a meeting with the other parties in advance of negotiations to establish this agenda and any time constraints is in a negotiator’s best interest. It is also important to review the agenda at the outset of the negotiation to make sure that everyone is on the same page and that no revisions need to be made.⁹⁹xSee Hal Movius, How to Negotiate—Virtually, Harv. Bus. Rev. (10 June 2020), https://hbr.org/2020/06/how-to-negotiate-virtually. To lessen the risk of distractions, a negotiator should do their best to participate in the negotiation from a quiet setting (from one’s office if possible) and encourage other parties to do the same.¹⁰⁰xSee Young, supra note 80. Of course, this is not always feasible, but it is important to make an effort to focus all of one’s attention on the task at hand. Overcoming the challenges posed by internet fatigue can be remedied by taking breaks at various times throughout the negotiation and scheduling further meetings if necessary. Disputes may take longer to resolve virtually, so allotting more time for discussions might be unavoidable and likely beneficial. These solutions can help a negotiator overcome the impediments to time management encountered in the ODR setting.

• 5 Conclusion

  The COVID-19 pandemic has placed ODR at the forefront of the legal world. Most things have changed, but the crucial aspects of a successful negotiation are here to stay. The disadvantages of ODR can create significant barriers to ensuring all of these elements are satisfied. But virtual negotiations are not all bad, and negotiators can use both innovative and common-sense techniques to make negotiations in the virtual world feel analogous to those conducted in person. With patience, creativity and diligence, negotiators can effectively tackle this new, uncharted, virtual world.

Noten

• 1 See Meredith McBride, ODR in the Era of COVID-19, ABA (27 October 2020), www.americanbar.org/groups/family_law/committees/alternative-dispute-resolution/odr.

• 2 See id.

• 3 See id.

• 4 See, e.g., Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo. L.J. 1789, 1794 (2000) (observing that “painstaking preparation is critical to success at the bargaining table”).

• 5 See, e.g., Janice Nadler, Rapport in Negotiation and Conflict Resolution, 87 Marq. L. Rev. 875, 875 (2004) (noting that rapport is a key element of a successful negotiation).

• 6 See, e.g., Nancy Neal Yeend, Three Key Factors to Successful Negotiation, Plaintiff Mag., November 2017, at 32.

• 7 See Korobkin, supra note 4, at 1792.

• 8 See Nadler, supra note 5, at 876-877.

• 9 See id. at 879.

• 10 See Myles P. Hassett, Negotiating to Win-Win, Ariz. Att’y, November 2019, at 42.

• 11 See Joseph W. Goodman, The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites, Duke L. & Tech. Rev., 18 February 2003, at 2.

• 12 See McBride, supra note 1.

• 13 See Paul Fisher, Eight Things to Know About the Art of Virtual Negotiation, Oxford Answers (25 November 2020), www.sbs.ox.ac.uk/oxford-answers/eight-things-know-about-art-virtual-negotiation.

• 14 See id.

• 15 See McBride, supra note 1.

• 16 See Goodman, supra note 11, at 21.

• 17 See Mladen Kresic, Virtual Negotiations Are Here To Stay—Now What?, Forbes (23 March 2021, 8:00 AM), www.forbes.com/sites/forbesbusinessdevelopmentcouncil/2021/03/23/virtual-negotiations-are-here-to-stay---now-what/?sh=21c9088f6670.

• 18 See Korobkin, supra note 4, at 1794.

• 19 See Nadler, supra note 5, at 875

• 20 See Yeend, supra note 6, at 32.

• 21 See Donald G. Gifford, The Synthesis of Legal Counseling and Negotiation Models: Preserving Client-Centered Advocacy in the Negotiation Context, 34 UCLA L. Rev. 811, 844 (1987) (advising that lawyers have an extensive “counseling session” with their clients before a negotiation); Korobkin, supra note 4, at 1794-1797 (noting that negotiators should perform “internal” and “external” research to determine their client’s options, BATNA, and bargaining zone).

• 22 See Jean R. Sternlight & Jennifer Robbennolt, Good Lawyers Should Be Good Psychologists: Insights for Interviewing and Counseling Clients, 23 Ohio State J. Disp. Resol. 437, 538-539 (2008).

• 23 See Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754, 801 (1984).

• 24 See id. at 801-804 (noting that the lawyer should determine the “needs or objectives” of her client and those of the other parties).

• 25 See id.

• 26 See Sternlight & Robbennolt, supra note 22, at 539-544.

• 27 See Menkel-Meadow, supra note 23, at 804-805.

• 28 See Gifford, supra note 21, at 829 (“Negotiation on behalf of clients inevitably involves counseling, and the interrelationships between the two processes must be accounted for if lawyering models are to describe realistically client representation or provide useful guides for lawyering behavior”.).

• 29 See id. at 845-846.

• 30 See Korobkin, supra note 4, at 1794-1795.

• 31 See id. at 1795.

• 32 See id. at 1796-1797 (“A party’s RP has two components: (1) the market value of his BATNA; and (2) the difference to him between the value of his BATNA and the value of the subject of the negotiation”.). Considering all of the alternatives to a negotiated agreement allows the negotiator to determine their reservation price which “is of critical importance because without a precise and accurate estimation of his RP the negotiator cannot be sure to avoid the most basic negotiating mistake – agreeing to a deal when he would have been better off walking away from the table with no agreement.” Id. at 1797. By determining one’s own reservation price and estimating the other party’s reservation price, a negotiator can set their bargaining zone – the range within which they are willing to come to an agreement. See id. at 1797-1798.

• 33 See id. at 1795.

• 34 See Roger Fisher, William Ury, & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving 86-89 (3rd ed. 2011).

• 35 See Korobkin, supra note 4, at 1825-1829.

• 36 See id. at 1826.

• 37 See Menkel-Meadow, supra note 23, at 816.

• 38 See Gifford, supra note 21, at 844-845.

• 39 See id.

• 40 See id. at 847-849 (“The type of authority a client delegates to the lawyer ranges from unlimited authority, which gives the lawyer carte blanche to enter into an agreement on behalf of the client, to “open authority”, which authorizes the lawyer to negotiate, but does not give her any authority to enter into a binding agreement”.).

• 41 See id.

• 42 See id. at 833 (noting that negotiations do not necessarily resolve the issue during one meeting and often occur “over an extended period of time”).

• 43 See Leigh Thompson, The Mind and Heart of the Negotiator 134-142 (5th ed. 2012).

• 44 See id.; Roger Fisher & Wayne H. Davis, Six Basic Interpersonal Skills for a Negotiator’s Repertoire, 3 Negot. J. 117, 117 (1987).

• 45 See Catherine H. Tinsley, Jack Cambria, & Andrea Kupfer Schneider, Reputations in Negotiation, in The Negotiator’s Fieldbook 203-208, 211-212 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2006) (finding that negotiators with ‘integrative’ reputations, i.e., those willing to “cooperate, problem-solve, be trustworthy and compassionate, create joint value, or generally get a deal that works for both (or all) parties”, tend to achieve better outcomes and are perceived in a positive light by their counterparts).

• 46 See Thompson, supra note 43, at 134-142.

• 47 See id.

• 48 See id.

• 49 Id.

• 50 See id.

• 51 See id.

• 52 Id.

• 53 See id.

• 54 See id.

• 55 See id.

• 56 See id.

• 57 See Fisher & Davis, supra note 44, at 121 (recommending setting aside plenty of time for each side to explain their version of the story; making sure you understand the other side’s arguments before responding; repeating the other side’s assertions back to them; and actively trying to understand the reasoning behind a party’s arguments to increase opportunities for different and useful solutions).

• 58 See Alain Burrese, Listen Up, Mont. Law., Sept. 2006, at 22 (stating that certain non-verbal signs like tone of voice and body language can convey messages like uncertainty and deceit); Susan Nauss Exon, The Next Generation of Online Dispute Resolution: The Significance of Holography to Enhance and Transform Dispute Resolution, 12 Cardozo J. Conflict Resol., 19, 23 (2010) (“Some psychologists estimate that seventy to eighty percent of communication comes from nonverbal cues”.).

• 59 See Burrese, supra note 58, at 22 (“[I]f you’re going to convince someone to agree to your terms in negotiations, the first step is to listen”.).

• 60 See Rebecca Hollander-Blumoff, Novel Negotiation, J. Disp. Resol., Spring, 2017, at 69.

• 61 See Moty Cristal, Negotiating in a Low-to-No Trust Environment, Alts. High Cost Litig., December 2018, at 165.

• 62 See Tinsley, Cambria, & Schneider, supra note 45.

• 63 See Yeend, supra note 6, at 32.

• 64 See Gifford, supra note 21, at 832-833.

• 65 See Cecilia Albin, The Role of Fairness in Negotiation, 9 Negot. J., 223, 228 (1993).

• 66 See id. at 227-228 (describing “agenda-setting” as a method of ensuring procedural fairness in negotiation, as long as all parties have equal input); Yeend, supra note 6, at 32.

• 67 See Albin, supra note 65, at 227-228.

• 68 See McBride, supra note 1.

• 69 See id.

• 70 See id.

• 71 See Jeff Trueman, Cecilia B. Paizs, & John Greer, No Need To Panic: Online Dispute Resolution Works, 2 Md. Bar J., 140, 143 (2020).

• 72 See Kyle Bailey, Online Dispute Resolution: A Primer, Mediate.com (Feb. 2020), www.mediate.com/articles/bailey-primer.cfm. For some parties, the cost and time required to resolve their dispute in-person may outweigh the ultimate benefit, especially if it requires them to take time off work that they cannot afford.

• 73 See id.

• 74 See id.

• 75 See id.

• 76 See McBride, supra note 1.

• 77 See id.; Goodman, supra note 11, at 21; Kresic, supra note 17.

• 78 See Bailey, supra note 72.

• 79 See McBride, supra note 1; Exon, supra note 58, at 34.

• 80 See Cortney E. Young, Revelations in Online Dispute Resolution: Lessons Learned in Catastrophe Can Lay Foundation for Tomorrow’s Success, A.L.I., 26 January, 2021.

• 81 See Exon, supra note 58, at 34.

• 82 See id. at 35.

• 83 See id. (“[T]he video camera may not pick up someone twitching and playing nervously with a pen if the camera is focused on a person’s upper torso. It will be difficult for someone to get up and pace around the room as he is contemplating something because he will not be picked up by the camera”.).

• 84 See Kresic, supra note 17.

• 85 See id.

• 86 See id.

• 87 See Young, supra note 80.

• 88 See id.

• 89 See id.

• 90 See Young, supra note 80.

• 91 See McBride, supra note 1.

• 92 See id.

• 93 See Fisher, supra note 13.

• 94 See id.

• 95 See Fisher & Davis, supra note 44, at 121.

• 96 See Fisher, supra note 13.

• 97 See id.

• 98 See Albin, supra note 65, at 227-228.

• 99 See Hal Movius, How to Negotiate—Virtually, Harv. Bus. Rev. (10 June 2020), https://hbr.org/2020/06/how-to-negotiate-virtually.

• 100 See Young, supra note 80.