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This exercise is a six-party simulation of multiparty negotiations in a bankruptcy (reorganization) and mass torts context. The simulation represents a version of such negotiations which take place in the shadow of the Bankruptcy Code, with roles, interests and issues that have been stylized for educational purposes. In this exercise, a genetically-modified food producer has been sued by multiple consumers of its food products and is forced to file for bankruptcy protection in order to automatically stay (i.e., suspend) the flood of tort (i.e., personal injury) claims brought against the company, as well as those claims of the company’s secured and unsecured creditors. The company’s assets are “wasting” assets (i.e., they are deteriorating in quality, and therefore in value, rapidly). This means that the parties will have to reach an agreement quickly, if enough value is to be preserved to meet their diverse interests.

The simulation is primarily intended for use in a course on multiparty negotiations, though it also may be used in a bankruptcy course. It implicates such concepts as blocking and winning coalitions, BATNAs (Best Alternatives to A Negotiated Agreement), risk forecasting, and conflicting and compatible interests (the emotionally-charged and hard to reconcile interests of different kinds of creditors and a debtor).

This simulation requires at least ninety minutes to conduct: a ten-minute bankruptcy law background presentation (handout provided), ten minutes for individuals to read the general and confidential instructions and plan their strategies, five minutes of same-role strategic brainstorming, up to forty-five minutes of multiparty negotiation, and twenty minutes of in-class debriefing and discussion.

Participant Materials include:

For all participants:

• General Instructions

• Student Handout: Negotiating in the Shadow of Bankruptcy

• Negotiation Summary Sheet

Confidential Instructions for:

• NoDrink, Inc.

• Secured Creditors

• Unsecured Creditors

• Severely Harmed Tort Claimants

• Slightly Harmed Tort Claimants

• Possible Future Tort Claimants

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SCENARIO:

The operation of an incinerator near a racially diverse community in a small, financially depressed town is the focus of debate in this exercise. As members of a “task force,” participants must formulate an action plan to address charges of unfairness in the implementation of environmental policy. The exercise asks what are “valid” grounds for claims of environmental justice, who has a right to make such charges, and to what degrees remedies should acknowledge issues of race and class.

MECHANICS:

This is multi-party negotiation that has the potential for coalitions. The preparation time necessary is 30 minutes. The minimum negotiation time is 1 hour and debriefing can be completed in 1 hour too. The threat of legal action and community outrage is motivation for process in the negotiation.

TEACHING MATERIALS:

For all parties:

• General Instructions

• Portia Tribune Article

Role Specific:

• Confidential Information for Franz

• Confidential Information for Soren

• Confidential Information for Hamilton

• Confidential Information for Thompson

• Confidential Information for Briggs

• Confidential Information for Price

Teacher’s Package (49 pages total)

• All of the above

• Teaching Note

MAJOR LESSONS:

• Environmental racism has been defined as racial and/or class discrimination in environmental policy making and in the enforcement of regulations and laws, the deliberate targeting of poor communities or communities of color, or the official sanctioning of the presence of poisons and pollutants in life-threatening levels within those communities.

• A process of consensus building can be structured so that environmental justice is achieved. The requirements of such a process go beyond what democracy typically provides (i.e. one cannot depend upon the electoral or voting process to ensure adequate input of consensus).

• Compensation may be part of a response to charges of environmental racism, but public participation is necessary to forestall any future problems.

NOTE: Now available is the Environmental Justice Package, which is comprised of the Teacher’s Packages of this exercise and the simulation “Siting an Asphalt Plant in the City of Madrona”, and includes the article Risk and Justice, by Patrick Field, Lawrence Susskind, and Howard Raiffa.

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Free review copies of non-English Teacher’s Packages will be emailed upon request. Please contact chouse@law.harvard.edu or telephone 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.)

SCENARIO:

Big Pipeline, a construction company, is building a pipeline through land owned by First Nation (Native American) peoples. Twenty years ago, a similar project by the same company left many of the indigenous peoples feeling dissatisfied and unhappy – this has resulted in tensions in this current negotiation. Happily, most of the issues between the Mountain Home Band, the group of First Nations people who will be the most affected, and Big Pipeline have been worked out. One major issue remains – allocation of job opportunities. How many laborers should be used for the construction project and how many of these jobs should be reserved for Mountain Home Band people?

MAJOR LESSONS:

It is possible to negotiate agreements that create gains for you and for them–you can both beat your BATNA. To create joint gains, use the Mutual Gains Approach:

• Know your own BATNA and interests

• Set your aspirations

• Communicate your interests, and probe for their interests

• Trade across issues you value differently

• Use standards you can both accept to help you choose among options and packages

Manage the opportunities and dangers involved in setting aspirations:

• Set your aspirations high

• Be responsive to new information; don’t be rigid.

• When you do adjust your aspirations, be careful not to leave value unclaimed.

• Help your partner do the same.

Negotiate as if relationships mattered:

• Don’t jeopardize long-term relationships by pushing too hard for short-term gain.

• Effective “cross-cultural” negotiation depends upon making sure you are understood (and understand).

• The rewards of modest risk-taking can be substantial. There will always be tension between the advantages of cooperation and the need to “compete.”

• Good negotiators develop a repertoire of negotiating styles.

• You have to talk about relationships to improve them.

MECHANICS:

This negotiation may be run within 30 minutes with a 10 minute prep-time. You should allow at least 20 minutes for debriefing

TEACHING MATERIALS:

For all parties:

• General Instructions

Role specific:

• Big Pipeline Project Manager + score sheet

• Mountain Home Band Chief + score sheet

Additional Teaching Notes:

• Summary of ‘lessons learned’

• Summary score sheet for 120 players

• Chart of possible scores

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SCENARIO:

Wyethville is a small and blossoming city, whose recent economic prosperity has prompted development of its waterfront. A new and highly controversial code proposes banning all billboard advertising along the waterfront so as to beautify the area and attract investment. Six members of the local business community and residents, with divergent interests, must present a final Billboard Proposal to their City Council. At least five of the six members must endorse the Proposal for it to be accepted by the City Council.

MAJOR LESSONS:

• Land use decisions, particularly those involving aesthetics, can be more easily negotiated if the right forum is established.

• Value creation is possible in land use negotiation by including additional (off site) issues.

TEACHING MATERIALS:

For all parties:

• General instructions

• Copy of the proposed amendments to the Wyethville Sign Ordinance

Role Specific:

Confidential Instructions for

• P. Sondheim: President of the Wyethville Business Association + score sheet

• C. Castillo: Wyethville Development commission + score sheet

• B. Randall: Spokesperson for Scenic America + score sheet

• Prof. Landon: Professor of Political Science at Wyethville Community College + score sheet

• R. Waxman: Owner of the local Big Sleep Motel + score sheet

• C. Toli: Council Member for Wyethville and potential Congressional candidate + score sheet

Additional Teaching Notes:

• Teaching Matrix (charting various settlement options and the participants’ preferences)

KEYWORDS/ THEMES:

Free speech; aesthetics in the public sector; land use planning; zoning; municipal decision-making; urban design

SIMILAR SIMULATIONS:

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SCENARIO:

An employee of the company has filed a complaint with the company’s affirmative action office, charging his manager with discrimination. Dealing with diversity within the company is also an issue. The case is referred to an HR representative who consults with the parties.

This exercise is one of six modules in the “Collaborative Negotiation for Human Resource Professionals” curriculum package. For details, please see Collaborative Negotiation for Human Resource Professionals under “Curricula.”

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SCENARIO:

A Student recently handed in a mid-term paper for a class called “Biography and Race.” He was extremely proud of the paper, which was written about his Latina nanny. He even sent her a copy. He was dismayed to receive a C+, and called for a meeting with his teaching fellow (TF). The TF in turn is dismayed by the lack of understanding shown by the student, who is one of only two white students taking the course.

TEACHING MATERIALS:

Role Specific:

• Confidential Instructions for the Student

• Confidential Instructions for the Teaching Fellow

Teacher’s Package

• All of the above

MAJOR LESSONS:

• This role simulation is a good tool for demonstrating, active listening. The two parties understand the situation very differently. How well they are able to listen to the other position is extremely important to the resolution of the problem.

• Issues of race, and cultural sensitivity are extremely emotional issues which can quickly derail a negotiation. Both of the participants see the other as deficient in understanding other races. How these thoughts are broached is crucial to the success of the negotiation.

• This is a simulation with no clear ending. Do the people playing the student just want their grade changed, or do they want to understand what the TF wants? Does the TF want to calm the student down, and provide them with a way to get a higher grade, or do they want to improve the student’s sensitivity and writing style? Is the paper the center of the negotiation, or just a side-line?

SIMILAR SIMULATIONS:

• Conference with a Professor

• The Phoenix

• Student Paper

• Telemachus Technology

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SCENARIO:

The Blueville Health Foundation (BHF) has recently been created to fund health initiatives in the Blueville Area. The BHF is run by a 5-member Executive Committee. The Executive Committee of the Board has been charged to set priorities for funding health projects. Unfortunately, the members of the Executive Committee have struggled with how to identify community health issues that need funding, how to engage the community in this process, or even how best to interact among themselves to meet their Foundation responsibilities.

To help the process along, the newly hired Executive Director of BHF commissioned a ‘community health needs assessment’ to help determine priorities. Based on this assessment and discussions with Executive Committee members, the Executive Director has put together a proposal to help move along the process so that quick decisions can be made. This meeting of the Executive Committee has been arranged to discuss the proposal and to make final decisions on the first round of funding (that will cover the first two to three years of the Foundation’s existence).

Additionally, the committee members will need to decide on an approach to community participation for future Foundation grant allocation priority setting and decision-making.

TEACHING MATERIALS:

For all parties:

• General Instructions

• Result Sheet

• Appendix A-E background information on Blueville

Role specific:

• Confidential instructions for:

• Dr. B. Mortimer, Chairman of the Board, Blueville Health Foundation

• N. Limmer, Executive Director, Blueville Health Foundation

• Dr. W. Lead, Pulmonologist at Blueville Hospital

• T. Burd, President, Burd and Hascom Associates

• B. Bott, Director, Speak Up

• R. Hopen, Senior Project Manager, Food for All

Teacher’s package (46 pages total):

• All of the above

• Three possible scenarios

KEYWORDS/ THEMES:

Foundations; philanthropy; community participation; managing conflict inside the organization; not-for-profit management; negotiation budge priorities

SIMILAR SIMULATIONS:

• Saint Francis Hospital

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SCENARIO:

Eagle Aircraft Engines, a manufacturer of engines for military and commercial aircraft, is preparing to negotiate a major five-year procurement for over 1000 parts from its suppliers. Its Airfoils and Casting Division (A&C) is responsible for purchasing roughly 100 of these parts.

Over the last three years, A&C at Eagle has purchased 90% of its parts from two suppliers: Crown and JDC. In preparation for the negotiations with suppliers, the five key personnel within A&C need to generate a “Business-Managed Procurement” policy in which A&C personnel must unanimously agree on four schedule and quality programs. The key personnel involved in the internal negotiation include three engineers, a buyer, and a financial analyst. They have all been sent a memo from the Purchasing Director outlining the overall procurement strategy. The Purchasing Director is putting pressure on them for consensus, emphasizing the importance of certain issues over others in preparation for his/her own negotiations with suppliers.

TEACHING MATERIALS:

For all parties:

• General Instructions

Role specific:

• Confidential instructions for Ferguson

• Confidential instructions for McGuire

• Confidential instructions for Banks

• Confidential instructions for Roberts

• Confidential instructions for Archer

Teacher’s package (33 pages total):

• All of the above

• Teaching Note

MAJOR LESSONS:

• To insure relationships that promote quality within the organization, both long-term and short-term interests must be balanced very thoroughly.

• Teams miss great opportunities to make “trades” with suppliers if they negotiate each issue separately. Packaging is crucial in this negotiation.

• Deciding how much information to disclose depends heavily on risk-trust, and perhaps the nature of the interest. If the interest is one that will put others at risk, or is driven by professional ambition rather than team goals, it will be risky to share with others on the team.

SIMILAR SIMULATIONS:

• Common Measures

• Multisumma

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SCENARIO:

Bog Berries Inc. (Bog Berries), a large and successful cranberry products firm, has been accused of intentionally dumping toxins into sewers and waterways near its plant. The Federal Environmental Agency (FEA) filed felony charges under revisions of the Clean Water Act. An uneasy settlement deal was reached between Bog Berries and the FEA, but both parties have suffered considerable public relations damage and feelings are raw. Representatives from both sides must now negotiate the detailed stipulations of a new agreement that will allow Bog Berries to continue operation while meeting FEA requirements.

MAJOR LESSONS:

• When the game is played by several groups at the same time, the comparison of outcomes is instructive. Typically, some groups will reach agreement and some will not.

• Even though the parties are likely to settle, the agreements they reach are typically far from optimal. Pareto-optimal scores can be displayed in this game. The players can then explore how and why superior agreements were not found. The concept of the Pareto frontier can be examined.

• The range of possible agreements is wide; by comparing agreements, the usefulness of generating multiple options should emerge.

• The design of the meeting and decisions as to pre-meeting caucus, intra-party discussions, seating plans etc. should be created by the parties.

TEACHING MATERIALS:

For all parties:

• General Instructions

Role Specific: Confidential Instructions for

• Bog Berries CEO

• Bog Berries Public Relations Officer

• Bog Berries Attorney

• FEA Head Negotiator

• FEA Head Scientist

Teacher’s Package:

• All of the above

• No teaching note currently available

KEYWORDS/ THEMES:

Negotiating compliance; environmental dispute resolution; regulatory negotiation; science-intensive policy dispute; inside-outside tensions; public relations; caucusing

SIMILAR SIMULATIONS:

Carson Extension

DirtyStuff

Dioxin: Waste to Energy Game

Rad Waste I

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Free review copies of non-English Teacher’s Packages will be emailed upon request. Please contact chouse@law.harvard.edu or telephone 800-258-4406 (within the U.S.) or 781-966-2751 (outside the U.S.)

SCENARIO:

Terry Holtz, a senior editor with a highly regarded, independent publishing firm has received a proposed book entitled Entrepreneurial Schools written by a young, up and coming, but never before published author. Terry is extremely interested in the book and is willing to pay an exceptionally high author’s advance for the book. Jay McIntyre is a successful literary agent and represents Rachel Leonard, author of Entrepreneurial Schools. Jay has shown Rachel’s manuscript to one other publishing firm than Terry’s and has since found out that they are not interested. This coupled with Rachel’s professional ambitions, which would be helped greatly by the visibility that comes with publication, has made Rachel anxious to close the deal with Terry’s firm fast. She has told Jay to settle for what he can get from Terry’s firm, but not to leave any money on the table.

NOTE: This exercise is analytically similar to the exercise Parker-Gibson in a different setting.

MECHANICS:

The exercise works best as a one on one exercise. Preparation should take 10-15 minutes and negotiation can take 10-30 minutes. Review and debriefing can last from 30-75 minutes.

TEACHING MATERIALS:

Role specific:

• Confidential Instructions for the Agent, Jay McIntyre

• Confidential Instructions for the Publisher, Terry Holtz

Teacher’s Package:

• All of the above

MAJOR LESSONS:

• This exercise is an excellent vehicle for comparing principled negotiation and positional bargaining. Depending on the skill of the other negotiator, both approaches can do well. Both parties should be risk averse, however, and wary of an adversarial approach that might get out of hand.

• The knowledge that one’s BATNA is weak often leads people to negotiate much less vigorously than they otherwise would. Is this ever justified? If so, under what conditions? The case affords a good opportunity to point out that any such analysis should be based on a consideration of the parties’ relative BATNA’s.

• Since the case does have a strong competitive element, there is ample opportunity to explore techniques for indirectly and directly extracting information from the other side. Likewise, techniques of protecting oneself from “giving up” the possibility for gains that were unforeseen can be explored and discussed.

SIMILAR SIMULATIONS:

• GE International

• A Salary Negotiation

• Sally Soprano

• San Morgan Contract

• Tendley Contract

SUBJECT:

Business; Contracts; Interpersonal

PROCESS THEMES:

Anchoring; BATNA; Bluffing; Commitment; Confidentiality; Disclosure; Fairness; Information exchange; Meaning of “success”; Objective criteria; Offers, first; Options, generating; Precedents; Risk aversion; Trust

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The Boston Busing Role Play is a simulation from the Workable Peace Curriculum Series unit on Civil Rights and School Integration in the United States.

OVERVIEW OF THE BOSTON BUSING ROLEPLAY:

This role play is set in Boston, Massachusetts in the 1970s. The background instructions give a brief history of school segregation and desegregation in the U.S. and Boston through the early 1970s. Multiple efforts have been made to improve schools for blacks in Boston, including voluntary one-way busing (Operation Exodus), metropolitan busing (METCO), and state legislation (RIA). But the Boston School Committee has resisted all attempts to make substantive changes to integrate the schools, and has denied that the schools are deliberately segregated. In 1972, black parents and the NAACP turn to the federal courts for a remedy.

In late spring of 1974, Federal Judge W. Arthur Garrity handed down his opinion in Morgan v. Hennigan, ruling that the members of the Boston School Committee “have knowingly carried out a systematic program of segregation…Therefore, the entire school system of Boston is unconstitutionally segregated.” In hopes of remedying the situation, Judge Garrity recommends implementing a plan written earlier by Charles Glenn, of the State Board of Education.

Although a series of hearings and negotiations did occur at this time on the Massachusetts Education Department plan written by Charles Glenn, as well as a number of attempts to build consensus among those affected by the decision, the key stakeholders never convened in a formal or informal facilitated setting. It is at this point that the Boston Busing Role Play becomes counter-factual. Our simulation asks participants to imagine “what if” all the stakeholder groups had been brought together for negotiations before Phase I of school integration had been attempted (and failed).

Therefore, as our simulation begins, Mayor White has called a meeting of the major stakeholders to review the Glenn Plan for integrating the schools, and to discuss alternative strategies. The meeting is to be chaired by his representative. Invited to the meeting are representatives of the Boston School Committee, the NAACP, the State Board of Education, and white and black parents.

GOALS OF A WORKABLE PEACE ROLEPLAY:

The Boston Busing Role Play aims to:

• Provide accurate historical and background information on school desegragation in the U.S., and in Boston in the 1970s.

• Stimulate and motivate student learning through active participation, as well as reading, writing, class discussion, and other forms of analysis and expression.

• Build students’ negotiation and conflict management skills by asking them to take on the roles of participants seeking to resolve a conflict through negotiation, with support and feedback as they prepare, conduct, and debrief the role play.

• Challenge students to find the links between the conflict presented in the role play and the conflict resolution steps presented in the Workable Peace Framework, and to apply them to other conflicts in history and in their own lives.

Teacher’s Package Includes:

• History and General Instructions

• Confidential Instructions for the black parents’ representative, the white parents’ representative, and the representatives of the NAACP, the Boston City Schools, the Mayor’s office, and the State Board of Education

• Framework for a Workable Peace

• Teaching Note

If you would like additional information about the Workable Peace framework and teaching materials, including information about teacher training and support, please contact Workable Peace Co-Directors David Fairman or Stacie Smith at:

The Consensus Building Institute, Inc. 238 Main Street, Suite 400 Cambridge, MA 02142 Tel: 617-492-1414 Fax: 617-492-1919 web: http://www.cbuilding.org Email: stacie@cbuilding.org

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Also known as Brachton School

SCENARIO:

The Brachton Teacher’s Union has been negotiating with the city’s School Committee over teacher contracts which will shortly expire Lately, Brachton public schools and teachers, funded largely through local property taxes, have come under some fire. Some fear that political and personal commitment to the Brachton schools has diminished. There is pressure on the school committee, headed by the mayor, for a tax cap and moratorium on all city salaries, including teachers. The issues have been identified and all that is left is for the two groups to hammer out an agreement.

MAJOR LESSONS:

• There are often legitimate differences within bargaining teams. These internal conflicts ought to be worked out before serious bargaining begins as unresolved internal conflict can create problems when it comes time to ratify carefully crafted draft agreements. This exercise creates opportunity for team participants to practice techniques and strategies of managing internal team conflict.

• In most collective bargaining situations, each side begins by staking out its position. both usually do this before they even hear what the concerns are of the other side. This often leads to the process of trading concessions which results in minimally acceptable outcomes. To achieve maximum joint gains it is necessary to focus instead on listening to the interests of the other side before staking out opening positions. The best techniques for probing interests can be studied.

• This exercise allows the players to explore the influence of threats on the behavior of other parties.

• The game raises questions of relationship, precedent and reputation. all sides have important long-term interests.

TEACHING MATERIALS:

For all parties:

• General Instructions

• Present Salary Schedule

Role Specific:

Confidential Instructions for the Union

• Union Representative: Bornhofft

• Union Representative: McKeller

• Union Representative: Whitesides

• New Union Representative

Confidential Instructions for the School Committee

• Representative: Gray

• Representative: Pedrotti

• Representative: Sehnert

• New School Committee Representative

KEYWORDS:

Agenda control; caucusing; competition v cooperation; consensus building; dovetailing; threats; recurring negotiations; labor-management; school budgets; role of agents

SIMILAR SIMULATIONS:

Collective Bargaining at Central Division

MAPO- Adminstration Negotiation

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SCENARIO:

Bradford, an old New England industrial city, is experiencing an economic boom. The city has recently adopted a ‘linkage agreement’ policy, requiring developers to make once-off payments to the city to offset infrastructure and housing costs. Curry Corporation (‘Curry’) is the first developer to propose a major project under the new administration. After meeting with all the appropriate municipal agencies and citizen groups, the only major issue left unresolved in the proposed project is the appropriate size of the linkage payment that Curry should make to the city.

MAJOR LESSONS:

• Pre-negotiation analysis should include a realistic appraisal of one’s BATNA. This provides a reference point against which proposed offers can be evaluated. It is important for each party to assess not only its own BATNA, but also that of the other party. This can also be done in the course of the negotiation itself by trying to elicit information from the other party about its alternatives.

• Distributive bargaining divides up a fixed pie, and is therefore inherently constant-sum. One party’s gain is another party’s loss.

• Each party should explore the interests of the other side before making an offer. Making an offer before exploring the other side’s interests could anchor the bidding too high or too low, thereby minimizing one’s own potential gains.

• When the negotiating parties are involved in an ongoing relationship, it is rarely (if ever) prudent to lie or misrepresent one’s interests.

ADDITIONAL NOTES:

This game can be played with multiple and simultaneous groups of four.

TEACHING MATERIALS:

For all Parties:

• General Instructions

Role Specific:

• Confidential Instructions for Municipal Negotiation Specialists

• Confidential Instructions for Curry Representatives

Additional Teaching notes:

• Detailed notes including:

• FAQ by parties about their instructions

• Debriefing guidelines for the instructor

• Discussions about the use of one’s BATNA

• Comments about the distributive bargaining process

• Comments about lying and misrepresentation

• Summary of lessons

• Exam Questions

KEYWORDS:

BATNA; Bluffing; Credibility; Ethics; Integrative bargaining; Legitimacy; Linkage; Misrepresentation; Real estate development

SIMILAR SIMULATIONS:

Negotiated Development in Redstone

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SCENARIO:

Roy Thomas, Director of Athletics at Benton College, was at the Benton College gymnasium to attend an intercollegiate wrestling match when he fell ten feet to the gym floor. He injured his elbow, shoulder and back. He was transported to the hospital in an ambulance, hospitalized for a day, and bedridden at home for for a while after that. After intensive therapy, Roy’s physical condition was “largely resolved.” A therapist prescribed use of a special exercise device if the affected areas stiffened up. However, Mr. Thomas chose an alternative and expensive treatment method.

Mr. Thomas has suffered three relapses in the last year, when he was laid up for a week. He claims difficulty concentrating and sleeping, as well as negative effects on his work and sexual relationships with his wife. Thomas and his wife filed suit against Pro Bleachers for negligent design, manufacture, and installation of the bleachers. Pro Bleachers, through its insurer Pinnacle, has denied liability. Counsel has suggested that after initial negotiation and stalemate, the parties use an ADR procedure to attempt to settle the case.

Note: Participants should be arranged in groups of three. The third person in each group will either be a mediator, an arbitrator with a potential bias for the defense, or an arbitrator with a potential bias for the plaintiff.

MAJOR LESSONS:

• This exercise presents the opportunity to use a careful analysis of the interests of the parties to craft an agreement to solve a dispute.

• This game is an opportunity to compare mediation and arbitration — including arbitration by arbitrators with different backgrounds. Interesting discussion should ensue from the comparison of the different groups.

• The exercise allows individuals to reflect on the legitimacy of claims and the role that “fault” plays in the negotiation process.

• The need for a BATNA to maximize the results.

• This exercise illustrates the danger of single-issue bargaining. Should participants limit the negotiation to a monetary dispute, the participants will be locked in a contest of wills. Hard bargaining may well emerge, resulting in a situation in which one party’s gain will ensure a loss to the other party.

If you prefer a mediation-only version or an arbitration-only version, please contact the Clearinghouse by phone at 800-258-4406 or by email at chouse@law.harvard.edu to place a special order. Otherwise, you will be given equal numbers of mediator, Arbitrator Siewell (potential defense bias), and Arbitrator Blake (potential plaintiff bias) roles.

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SCENARIO:

Downtown Realty, Inc. owns the historic Bullard Houses, a set of 51 attached brownstones in the city of Gotham. The Houses, occupied for decades by the city’s wealthy elite, have fallen into disrepair and are currently occupied only by a few low-income families. Downtown Realty has been prevented from demolishing the Houses by the Gothic Landmark Commission. Consequently, Downtown is eager to sell the property, and has several offers on the table. One offer proposes to convert the Houses into apartments, another into townhouses, and a third into a sophisticated marketplace. Downtown has not yet seen the offer of a fourth developer, Absentia, Ltd. Absentia is unfamiliar with Downtown’s other offers, but is confident that its offer will be appealing, although it is unwilling to reveal its exact plans. Each of the four offers presents a quite different financial package, each of which must be evaluated by Downtown in terms of present value. Both sides must take into consideration financial needs, tax implications, personal interests, and future dealings with the city Zoning Board. The negotiation involves attorneys representing Downtown Realty and Absentia, Ltd.

MECHANICS:

This case is essentially a one-on-one negotiation, but can be run effectively using teams of two. Individual preparation takes several hours, and involves extensive, but simple, present value calculations. Playing time can run from 40 minutes to one hour. Debriefing time should not be less than 30 minutes; substantially more is possible, up to 90 minutes.

TEACHING MATERIALS:

For all parties:

• General Instructions

Role specific:

Confidential instructions for:

• Seller

• Buyer

Teacher’s Package:

• All of the above

• Draft Teaching Note

PROCESS THEMES:

Attorney/Client relations; BATNA; Confidentiality; Information exchange; Lawyering; Message analysis; Misrepresentation; Objective criteria; Political constraints, dealing with; Preparation; Quantitative analysis; Undisclosed principles

MAJOR LESSONS:

One of the main issues in this case is whether to settle at all. The complexity of information exchange may impede settlement in a single negotiation session. This situation brings up the general point that the best outcome of a negotiation sometimes is not to reach an agreement.

Several interesting questions of confidentiality are raised here, since the sellers have promised one of the developers not to reveal information about their offer, and the buyer’s agent is under strict orders not to discuss his principal’s plans. Under what circumstances, if any, can the attorney reveal information, and what other ways are there to avoid suspicion?

This case requires careful analysis of the available information both before and during the negotiation. Beforehand, negotiators should work through a variety of simplified, but reasonably realistic financial structures (bonds, mortgages, loans, etc.) to make a judgment about the relative worth of the various offers and possible alternatives. During the negotiations, while much information cannot be revealed, what can has important, probably unforeseen, but not obvious implications for the other side.

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Free review copies of non-English Teacher’s Packages will be emailed upon request. Please contact chouse@law.harvard.edu or telephone 800-258-4406 (within the U.S.) or 781-239-1111 (outside the U.S.)

SCENARIO:

Four weeks ago, the Bunyon Brothers Construction Company began work on a 77-unit condominium complex at the end of a quiet, wooded, dead-end street named Chestnut Drive. All permits were properly, if quietly, obtained, and the quality of construction is high. Some resistance from the neighborhood was, of course, expected, but tempers now seem to be unusually high and a credible threat has developed of neighbors blocking the site access. The Company’s General Counsel has scheduled a meeting with a neighborhood “negotiating committee.” In preparation, he has scheduled an internal planning meeting with the Vice Presidents for Construction Management and for Marketing and Development. The exercise revolves around their three-party meeting.

NOTE: This exercise is an intra-team negotiation and is one of the two sides that makes up the exercise Chestnut Village (the other side is the exercise Chestnut Drive).

MECHANICS:

The Company officers should meet for 45-105 minutes. A break after 45 minutes for a presentation on intra-group process can be useful. After the completion of these preparation sessions, the groups should meet with one or more neighbor representatives (one or more of the officers at a time, however they chose in their planning session). Neighbors can be played by the instructor(s) or by other participants who have prepared as neighbors in the context of Chestnut Drive. Instructors can model various styles of negotiation. These negotiation sessions usually run about 20 minutes each. Different groups of executives and neighbors can continue by the substitution method (taking over where things left off) or by starting over.

TEACHING MATERIALS:

For all parties:

• General Instructions

Role specific:

Confidential Instructions for the:

• General Counsel

• V.P. for Marketing and Development

• V.P. for Construction Management

Teacher’s Package:

• All of the above

PROCESS THEMES:

Agenda control; Authority; BATNA; Commitment; Communica- tion; Compliance; Constituents; Currently perceived choice analysis; Education, as a means; Force; Group process; Media; Meeting design; Precedents; Preparation; Public opinion; Reality testing; Threats; Yesable propositions

MAJOR LESSONS:

This case focuses on two major themes. The first is preparation. What is your BATNA? What is theirs? What are their major interests likely to be? What are ours? What does their choice look like now? How, realistically, could we change it? What can they actually do? What can we do? How do we make it as easy as possible for them to do what we want, and hard for them to do otherwise? How do we best communicate all this? What yesable propositions do we have for them? Should we consult before deciding?

The second theme is meeting design and group process. How do three people work together to prepare for a negotiation? Set an agenda? Set strict time limits? Use a flipchart and a recorder? A facilitator? Separate inventing from deciding? And how do they work together in the ultimate meeting? Should they? How do they avoid divide and conquer tactics or distractions that keep them from focusing on any one point? How do they get commitment?

Another important theme is the problem of dealing with a representative of a constituency who does not have firm authority. The neighbor negotiators cannot really commit their neighbors. How should the Bunyon Brothers deal with that? Can either party really agree to what the other wants?

The case also raises the question of relationship and reputation. Both sides have important long-term interests.

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OVERVIEW:

Camilia Pictures is a film production company dedicated to producing movies with artistic merit, strong market potential, and cutting-edge sensibilities. Seven years ago, Camilia Pictures President Raven Reynolds, then an independent producer with a small company and a big Hollywood name, and Rick Statler, CEO of family entertainment powerhouse Labrador Entertainment, agreed to a merger. Camilia would continue to produce high-quality films, but it would do so as a part of the larger Labrador empire. Though Reynolds would still run Camilia, all movies it produced would now belong to Labrador.

For its first few years under the Labrador umbrella, Camilia Pictures thrived. But for the past few years, it has struggled as Reynolds and Statler continue to battle over money. Reynolds insists that she needs more to succeed. Statler, meanwhile, is increasingly concerned about the bottom line. The dispute between these two came to a head when Reynolds used her own money to purchase Privileges and Immunities, a controversial new documentary, against Statler’s direct orders. Reynolds contends that because she used her own money to buy it and Statler is refusing to distribute it, she has the right to make her own arrangements to bring Privileges to theaters. Statler insists that the film belongs to Labrador and that he is completely within his rights to refuse distribution. Labrador’s in-house counsel has referred both parties to separate lawyers to avoid a conflict of interest.

This simulation revolves around the meeting between the lawyers for Labrador Entertainment and Camilia Pictures, but is also suitable for use by non-lawyers. At stake is not only the ownership of the new documentary, but also the future of Raven Reynolds and Camilia Pictures at Labrador Entertainment.

MECHANICS:

Time Required:

• 2 hours individual preparation (preferably outside of class)
• 45-60 minutes preparation by side (optional)
• 45-60 minutes negotiation
• 1-2 hours debriefing

Group Size: 2 or 4 persons (lawyers may negotiate individually or in pairs)

Materials Required:

• General Instructions for both parties
• Confidential Instructions for Raven Reynolds’ attorney
• Confidential Instructions for Rick Statler’s attorney
• Illustrative 7-Element Preparation worksheet (to be distributed after the negotiation)

Teacher’s Package includes:

• All of the above
• Teaching note

MAJOR LESSONS:

This simulation is useful for focusing on a range of negotiation issues, including:

• Use of the Seven Element framework in preparation and negotiation (particularly interests, options, and objective criteria)
• Tension between empathy and assertiveness
• Tension between creating and distributing value (and associated issues such as disclosure)
• Dispute resolution in the context of a long-term relationship
• Issue control and strategy in a multi-issue negotiation
• Agreement-drafting skills and implementation orientation
• Relationship between negotiation process and substance
• Role of attorneys / agents in negotiation

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SCENARIO:

Approximately three years ago, Cape Development Corporation sold one of its thirteen adjoining lots to Charlie Davis. Although Davis had plans for the lot, it is still undeveloped. The City Council has now passed a cluster zoning ordinance which permits townhouse development if some land is permanently dedicated as open space. The 12 remaining lots, which are still owned by CDC, together with Davis’ lot, make a prime location for a cluster development. Such a financial asset is appealing to both parties, and has led them to this meeting to pursue a development. Both Davis and CDC have empowered agents to represent them, giving them authority up to maximum offers.

MECHANICS:

This one-on-one negotiation can run from 30-60 minutes. Teams of two can also be used, with somewhat longer times for preparation and negotiation.

TEACHING MATERIALS:

Role Specific:

Confidential Instructions for:

• Cape Development Corp. Representative

• Charlie Davis’ Representative

Teacher’s Package:

• All of the Above

PROCESS THEMES:

Attorney/Client relations; Authority; Competition v. Cooperation; Cost-benefit analysis; Financial analysis; Information exchange; Joint gains; Lawyering; Objective criteria; Offers, first; Options, generating; Pareto optimization; Quantitative analysis; Relationship; Reservation price; Risk aversion

MAJOR LESSONS:

There is tremendous opportunity for exploring creative options in this negotiation. Poorly handled, however, an adversarial deadlock can result. What techniques minimize the likelihood of that outcome?

The distributive bargaining component of the negotiation permits participants to perform cost-benefit analysis, as well as reflect on the importance of focusing on joint gains.

It is useful to explore how the participants use their reservation prices to determine opening positions and concession strategies. Is this justified? Effective?

Participants can see what role analysis of projected costs plays in achieving a Pareto-optimal outcome, and what effect it has on the decision-making process.

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SCENARIO:

Carson Rug Company is a middle-sized, family owned business located in Garth, along the Melrose River. Carson applied for an Army Corps of Engineers permit to construct a seawall extending into the Melrose River. After this application was denied, Caron’s second application, specifying a considerable smaller extension, was approved. However, the actual modifications nearly doubled the size of the authorized seawall fill. Carson contends that the noncompliance was unintentional and blames the engineering firm for misinterpreting instructions.

Representatives from the Army Corps, Garth Town Council, Hills Engineering, an environmental group, and the president of Carson Rug must negotiate the removal of the seawall fill in a manner that is agreeable to all.

MAJOR LESSONS:

• Multi-issue, multi-party negotiations tend to involve the formation of coalitions — especially blocking coalitions. This game provides an instructive context for exploring coalition strategies.

• Parties that reveal their true interests do not necessarily do better than those who remain silent or bluff. The advantages and disadvantages of revealing all one’s concerns are illustrated in this game.

• The need for a neutral “process manager” of some sort is also illustrated, as the participants must structure their discussions.

Teacher’s Package includes:

• General instructions for all participants

• Confidential instructions for:

• Stuart Carson (owner of the Carson Rug Company)

• Representative from Hills Engineering

• Army Corps of Engineers Lawyer

• Army Corps of Engineers Environmental Engineer

• Representative from Garth Town Council

• Local environmentalist from Massachusetts Chapter of Green Earth

• No Teaching Note Currently Available

Also available: Carson Extension – Mediated Version

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SCENARIO:

Carson Rug Company is a middle-sized, family owned business located in Garth, along the Melrose River. Carson applied for an Army Corps of Engineers permit to construct a seawall extending into the Melrose River. After this application was denied, Carson’s second application, specifying a considerably smaller extension, was approved. However, the seawall that was actually built was nearly double the size of that authorized in the permit. Carson contends that the noncompliance with the permit was unintentional and blames the engineering firm for misinterpreting instructions.

Representatives from the Army Corps, Garth Town Council, Hills Engineering, an environmental group, and the president of Carson Rug have agreed to a mediation regarding the removal of the unauthorized seawall fill.

MAJOR LESSONS:

• Multi-issue, multi-party negotiations tend to involve the formation of coalitions — especially blocking coalitions. This game provides an instructive context for exploring coalition strategies.

• Parties that reveal their true interests do not necessarily do better than those who remain silent or bluff. The advantages and disadvantages of revealing all one’s concerns are illustrated in this game.

• The mediator can play a key role in defusing emotions and facilitating a solution.

• This simulation is sometimes used in conjunction with the non-mediated version, in order to compare process and outcomes between groups with and without a mediator.

Teacher’s Package includes:

• General Instructions for all participants

• Confidential Instructions for:

• Stuart Carson (owner of Carson Rug Company)

• Representative from Hills Engineering

• Army Corps of Engineers Lawyer

• Army Corps of Engineers Environmental Engineer

• Representative from Garth Town Council

• Local environmentalist from Massachusetts Chapter of Green Earth

• Mediator

• No teaching note currently available

Also available: Carson Extension (non-mediated version)