Temporary restraining order (“TRO”):
One common misconception is that negotiation is useful only when parties stand in a non-confrontational relationship with each other. However, every time there is a settlement agreement in a lawsuit it was preceded by negotiation.
EXAMPLE: Lisa and Greg are neighbors in a small Virginia community. They have each owned, and resided in, their respective properties for many years. One day, Lisa decides to build a large paint mixing plant in her backyard. The plant produces a terrible odor, but as the wind usually blows away from her house (and toward Greg’s!) Lisa decides that the offensive smell is worth the significant cash she’ll earn from her new stay-at-home own-your-own business. Greg, obviously, is not nearly as pleased with the new edifice. Until now he has had a good relationship with his neighbor and decides to talk the matter over with her.In the above hypothetical, Greg has begun the process of negotiation. Although he has not taken any formal steps to determine his approach, collect information, and determine a strategy – all of which will be discussed in greater detail in the chapters on negotiation – he aims to seek some specific promise or action from Lisa. He might take an adversarial approach, i.e., go in with guns blazing, or he could present himself to Lisa as a problem solver with an idea which will create a win-win situation. Either way, negotiations have begun.
EXAMPLE: Greg’s message on Lisa’s answering machine goes unanswered. After a few days, he puts a letter in her mailbox. Still, Lisa has not contacted Greg. Finally, he knocks on her door, which is answered by a man he has never before met. “Lisa is busy counting her money right now. You’ll have to come back later.” The newly angered Greg retains a local attorney who files in the county court on Greg’s behalf.
At this stage, many people tend to believe the common television or movie chain of events: the lawsuit proceeds with each party working feverishly only to win his or her case until the jury is out. One party then offers to settle with the other. If the settlement is not accepted, everyone sits back and waits for the jury to return with the verdict. There are two major flaws with this scenario. First, many cases are decided solely by a judge as finder of law and fact (i.e., there is no jury). Second, and more important to our present interest, the process of negotiation rarely has such defined beginnings and ends and periods of activity and inactivity. Rather, in many cases, the attorneys for each side will negotiate at various points in the case, depending upon their clients’ wishes.
Professor Robert Mnookin, however, notes in his book, Bargaining With The Devil: When To Negotiate, When To Fight that there are rare occasions when negotiation is not the best course of action. Mnookin, head of Harvard Law School's Program on Negotiation, combines business, history, philosophy and psychology to present a complete set of tools for confronting "Devils," defined as any individual perceived as a harmful adversary. Examining eight conflicts, including Winston Churchill's decision to reject negotiations with Adolf Hitler, Nelson Mandela's decision to initiate discussions with South Africa's apartheid government, IBM's discovery that its largest competitor copied its software, poisoned labor-management issues in the San Francisco Symphony, and examples from his professional experience, Mnookin (Beyond Winning) provides a straightforward account of the deliberative options when facing a "Faustian tension between pragmatism and principle."
EXAMPLE: The case of Greg v. Lisa will not come before a judge for several weeks. The day after filing, Greg asks his attorney to call Lisa’s attorney and offer to discuss this like neighbors and friends. Lisa, through her attorney, refuses. Greg then seeks a temporary restraining order. If the TRO is granted, Lisa might well return to Greg herself, and offer to open negotiation, with the hopes of more quickly re-opening her paint factory.
This is just one of an infinite variety of scenarios which play themselves out daily in the legal community across the country. Until acquiring a more thorough knowledge of the various processes and roles of negotiation, suffice it to say that this is a richer and more diverse landscape than is indicated by popular culture.