The Science and Art of Negotiation for Resolving Disputes and Making Deals

• Main Authors: Yu-Wei Chang, 張宇維
• Other Authors: 王文宇
• Format: Others
• Language: zh-TW
• Published: 2011
• Online Access: http://ndltd.ncl.edu.tw/handle/65653593970817233025

碩士 === 國立臺灣大學 === 法律學研究所 === 100 === Negotiation is a means for dispute resolution and deal making through conversations. To legal practitioners such as judges, lawyers, and mediators, it is an inseparable skill. Given its critical importance to the profession, the Harvard Law School designed a “Program on Negotiation," and the United Kingdom created a “Diploma in Legal Practice” to bridge the gap between academia and actual practice through the research, development, and teaching of the theory and practice of negotiation. In contrast, in Taiwan, only limited analysis has been done on this topic, and few words on how negotiation can be used to settle disputes or put off litigation are available. Therefore, this paper aims to introduce the fundamental theory, strategy, and mode of thought of negotiation from the perspective of a legal practitioner. It will discuss both contentious and non-contentious matters such as dispute resolution, deal making, and mediation by a third party, in addition to case examples, in order to serve as a guide for scholars and practitioners conducting legal negotiations. Negotiation is both an art and a science. Referencing research literature on law, business, economics, psychology, and art science, this paper demonstrates that the best practice of negotiation combines the various characteristics of art and science. It explains the interrelations and respective functions of the participants (including the negotiating parties, their lawyers, and mediators), and the common strategies used throughout preparation and the actual negotiation, with highlights on specific modes of thought and tactics for the different purposes of negotiation such as dispute resolution and deal making. This paper yields the following conclusions: 1. Shared value creation and value distribution are two concepts deserving of equal attention. 2. To guide the negotiation process toward a positive outcome, it is important to treat each negotiation participant with respect and manage their relationships with care. 3. The negotiation agents should put the negotiating parties’ interest first. 4. The use of the illusion of competition has distinct advantages and disadvantages, and should only be adopted after careful assessment. 5. When necessary, introduce a fair and independent mediator to facilitate the continuation of negotiation. 6. In complex cases, combine techniques of deal-making and dispute resolution.