Negotiation: Case Study
Case: “Several months ago, Jerome Smith was involved in an automobile accident with Rachel O’Roark. The accident happened at 2:30 A.M., and Jerome had been drinking at a local tavern. Rachel, a registered nurse, had just finished her shift at a nearby hospital. The roads were slick due to a thundershower that had recently passed through the area. Although Jerome was uninjured, Rachel received a dislocated shoulder that could impact her work as a nurse. Jerome did not want the civil side of the accident to be litigated. He had the money to make Rachel a nice settlement. When Jerome telephoned Rachel, she refused to talk to him. He then hired Cynthia Chang to represent him. Cynthia telephoned Rachel to try to set up a meeting. Rachel informed Cynthia that she had turned her case over to Roland White, an attorney. Cynthia then telephoned Roland. His secretary informed Cynthia that Roland was ‘out of the office’ and would not be back for several days. Cynthia left a message for Roland to call her about the O’Roark/Smith case. A week passed and no call from Roland. Another week passed and no call from Roland. Cynthia called again and this time was able to speak with Roland who informed her that he was in the middle of a big trial and could not meet with her for another three weeks. Roland proposed a time and place for the meeting and Cynthia agreed,” (Frey, M., p. 112).
The principle of negotiation is one of mutual compromise; this allows both parties to find a point of consensus in the midst of a dispute. Although the boundaries of negotiation are forged by the parties, lawyers involved must maintain their own standards of professional conduct, as established and enforced by the American Bar Association. Negotiation is often a starting point of dispute resolution, whether explicitly or implicitly negotiated. In the case of Jerome Smith and Rachel O’Roark, various rules were implemented as the negotiation began at the scene of the accident. Negotiation can happen at any time; in any place; and unlike other forms of dispute resolute; does not require a specific setting, (Frey, M., p. 97).
Jerome Smith’s automobile collision caused Rachel O’Roark to sustain bodily injuries; these physical injuries were not only internal, but life-altering. Jerome’s accident impacted Rachel’s livelihood, her patients, and her family; these innocently impacted human beings were indirectly affected through Jerome’s actions causing an encroaching suffering to all those who rely on her, of which bears an unforeseeable magnitude of collateral damage. Jerome’s accident was perpetrated by his intoxication resulting in vehicular negligence, leading to an incurrence of damage to O’Roark; therefore, Jerome has inherited total responsibility for providing relief to the victim of this tragic accident. Rachel’s inability to fulfill her expectations as a nurse, due to her dislocated shoulder affected not only her mental state, but now holds the potential to bring detriment to other aspects of her life.
Jerome’s first contact with Rachel following the impact occurred by phone, where he offered an unpersuasive monetary settlement. This represents the first instance of the negotiation, though it is not specified exactly how Jerome obtained O’Roark's information, as no documentation of their interaction at locus delicti, the scene of the accident was recorded; if any exchange occurred. Jerome initiated distributive position-based negotiation, offering an initial sum of money (presumably by phone, as it was unrecorded if he offered any money at the scene of the crash); whereby Rachel clearly declined to accept the offered money for his accident. Rachel valued her own life far more than what Jerome was offering; deciding instead to pursue litigation, where the negotiation between parties then became interest-based. Jerome’s distributive explicit negotiation preconceived an initial value over both Rachel and her sustained injuries, leading to the implicit rejection of his offer. This began the negotiation process, as the parties summoned their attorneys to assist as intermediaries in the best possible outcome for both litigants, alongside necessary relief for Rachel O’Roark. Jerome will gain relief from the guilt of his negligence causing detriment and distress to other human beings; thereby both parties must reach a compromise that allows this facilitation of relief.
Rachel’s rejection of Jerome’s attempt at settlement indicates that Rachel intends to assert her right to legal action to ensure the best possible outcome for the situation. Rachel opted for negotiation, rather than accepting a unilateral offer from Jerome. Cynthia Chang’s representation of Jerome Smith involved explicit negotiation; facilitating Chang’s pursuit of Roland White; an action which once achieved, will involve further negotiation. Roland White’s representation of Rachel O’Roark involved implicit negotiation, as White prolonged attaining a resolution, yet provided full disclosure of the conflict of interest between parties; per the American Bar Association’s (ABA) Model Rules of Professional Conduct’s (MRPC) Rules 1.7 and 1.8; influencing Chang’s urgency to expedite the negotiation process. Should both parties be unable to reach a resolution, the two parties can move to another form of litigation; namely mediation or arbitration. In the case of arbitration, their fate will be left up to an appointed decisionmaker (the arbitrator), whose procedure results in a binding resolution. Negotiations are not always legally enforceable, as unlike arbitration which is rooted in law, negotiation is an opportunity for Rachel O’Roark to maximize her settlement, controlling the outcome and her level of willing compromise. Jerome should opt for negotiation, as he can have an initial opportunity to come to a personal compromise, minimizing his expenses and fees.
The rules implemented during negotiation are declared by the negotiating parties and are not based on the law, (Frey, M., p. 107). This method of dispute resolute will require both parties to reach a compromise, yielding in some way to each party in order to reach a resolution. The parties establish their own timetable, therefore either party cannot be scrutinized for delaying litigation. The rules established in negotiation can impact the influence of the outcome in a number of ways including Roland White’s near violation of the American Bar Association’s (ABA) Model Rules of Professional Conduct’s Rule 3.2 on expediting litigation. White has a duty to uphold the ABA’s MRPC, even though negotiations do not adhere to strict timeframes, and the parties hold total authority over the duration of their own negotiation. Roland White has not indicated a conflict of interest, under the MRPC’s Rule 1.7, and therefore must represent his client to the fullest extent of his ability, per Rule 1.3. Both clients would like this resolved as quickly as possible, especially Jerome who caused the accident due to intoxication and vehicular negligence.
At the initial stage of negotiation between Jerome and Rachel, these rules are implicit, yet will actualize as the negotiation progresses into an explicit enumerated resolution, that both parties agree to, ultimately ending in a binding contract. Cynthia Chang’s client Jerome initiated the negotiation, to avoid litigation; transaction costs; the need for discovery; and filing fees, (Frey, M., p. 107). Unlike mediation, no neutral third party must consent to, or influence the decision of the parties upon reaching a consensus, (Frey, M., p. 107). Jerome’s attempt to pay off Rachel is explicit negotiation, whereas Cynthia Chang’s attempt to reach Roland White, alongside his response, utilizes an implicit form of negotiation. Negotiation is based on a party’s needs while weighing the gains of alternative measures, (Frey, M., p. 107). The parties’ decision on whether to negotiate is based on both party’s needs and interests and not on the law, (Frey, M., p. 107). Rachel is implicitly negotiating for justice, and compensation for her sustained injuries, alongside her loss of work; Jerome is explicitly negotiating to avoid further litigation.
The negotiation began when Jerome attempted to offer what he considered to be a “nice settlement,” however Rachel did not feel his offer was justified, opting for a negotiation to reach a resolution through an alternative dispute. In negotiation, the parties are responsible for providing their own processes, and arriving at a mutually agreed upon resolution, (Frey, M., p. 81). Rachel O’Roark is in no way required to accept Jerome’s offer, should she find it unsuitable to recoup her losses; no matter the cost to achieve resolution, Rachel can never depart from this horrific experience. In the practice of negotiation, both competition and cooperation are fundamentally unison, (Goldberg, S., p. 45). Jerome and Rachel must work together to achieve a balanced resolve; should they be unable to, mediation may be used; followed by arbitration, where a neutral expert in the matter can be appointed by the parties to achieve a resolution, (Goldberg, S., p. 210).
Negotiation often begins discreetly, as a “voluntary, consensual, private dispute resolution process,” (Frey, M., p. 102). Jerome initially wanted to avoid litigation as he had been drinking; therefore his actions were likely influenced by intoxication, however, this is subject to the results of testing at the time of the accident. It could be argued that Rachel was also tired after working a long shift, however Jerome’s intoxication Rachel did not want to speak with Jerome, instead hiring an attorney to represent her. The persistence of James’ attorney to reach Roland White could be considered misconduct under the ABA's MRPC's Rule 8.4, as Roland White could perceive Chang’s persistence as harassment. Roland White noted his commitment to working a case from another client; he also offered an opportunity to negotiate, three weeks from the reported telephone conversation.
The Great Commission reminds us of the importance prevailing in strength during instances of compromise, (Matthew 28:16-20); alongside this, God reminds us that human negotiation is His will, as Scripture states; “[a]gain, truly I tell you that if two of you on earth agree about anything they ask for, it will be done for them by my Father in heaven. For where two or three gather in my name, there am I with them,” (Matthew 18:19-20; NIV).
Conclusion
Jerome and Rachel’s case is a prime example of everyday negotiation’s subjectivity, its rules, each party’s role, and the application of mutual compromise. Negotiation reinforces the obligation attorneys have to ensure professional conduct; lawyers representing negotiating parties must submit to the parties' timeframe while resisting their own personal temptation to act as a third-party mediator or adjudicate a resolution as an arbitrator. The lawyer must represent their client’s best interests; Roland White seeks restitution for Rachel’s terrifying experience; Cynthia Chang provides damage control, minimizing expenses incurred by Jerome’s negligence. The case reveals that negotiations often occur on their own grounds, with rules developed and mutually adhered to by both parties; it displays the importance of communication, revealing the perils that exist, unlike other forms of dispute resolution.
Bibliography
Frey, Martin A. Alternative Methods of Dispute Resolution. Cengage Textbook. Kindle Edition.
Goldberg, S.B. (2003). Dispute Resolution - Negotiation, Mediation, and Other Processes, Fourth Edition. Wolters Kluwer, Aspen Publishers: New York, NY.
NIV. Matthew 18:19-20; Matthew 28:16-20