When preparing for a really important negotiation, put things in big picture perspective. How the outcome of this negotiation affect my personal, family, social, community life.

Contract performance and evaluation

If during the course of a contract, there are performance issues, such as non delivery, payments, quality, then you need clear processes to negotiate them and reevaluate contract.

Dispute Prevention

• It is more important to predict what people will do, than what courts will do.
• Prevention is about what is driving people to court instead of will we win in court.

Alternative Dispute Resolution concepts

• ADR options
  • Mediation
  • Negotiations
  • Arbitration
• Mediation - mini trial
  • A structured negotiation
  • Involves a neutral party, expert in technical/legal field.
  • Litigation is a zero sum, mediation does not have to be.
• Arbitration - Rent a judge
  • Retired judge hired to arbitrate
• Arbitration - advantages
  • Can be faster.
  • Can be cheaper.
  • Private litigation.
  • You get to pick the arbitrator/judge.

ADR Tools

• Corporate pledge
  • corporate policy to pursue ADR processes before litigation.
• Screens
  • List of questions for business people.
  • Based on the questionaire it suggests binding or non-binding processes.
• Contract clauses
  • You can include ADR clause in the contract.
• Online dispute Resolution
  • Cheap and convinient, but less effective.

Arbitration

• Arbitrator does not have to be a lawyer.
• Arbitration can look a lot like litigation.
  • Opening statements
  • Cross examinations
  • Oauths
  • Closing statements
• Arbitration is binding and cant be reviewed in court.
• Arbitration costs are non trivial, but mostly lower than litigation.

Mediation

• Types
  • Facilitative. (traditional)
  • Evaluative. (traditional)
  • Tranformative.
    • Focused more on changing the dynamics of the relationship.
    • Very useful for long term relationships.

Contract performance evaluation

• Mindsets of contract makers (deal makers) and contract implementors can be different.
• What did you/we do well?
• How can I/we improve?

Deal Focus	Big Picture Focus
Price, discounts	Total cost of ownership
Volume of sales	Length of customer relationship
Loss of customr	Compare deal to BATNA
Sporadic review of deals	Systematic review and improvement of process