Applying the Social Science of Persuasion and Influence to the Art of Negotiation

-- Myer J Sankary Esq

Mediators take up the profession, as they possess highly developed skills of negotiation. In emotional litigations the mediators have to understand the role of human emotions and human responses to social stimuli. In this paper, the author critically analyzes Dr. Cialdini's six principles of persuasion, which were discussed in the book, Influence: Science and Practice. The first is "reciprocity", where people feel obligated to give back to others who have given to them. The second is "liking", as people tend to say yes to those whom they know and like. The third is "consensus", in which people decide what is appropriate for them to do in a situation by examining and following what others are doing. The fourth is "authority" in which the scientist envisages that people rely on those with superior knowledge or perspective for guidance on how to respond and what decision to make. The fifth is "consistency", where, once we make a choice or take a stand we will encounter personal and interpersonal pressures to behave consistently with that commitment. The last and the sixth is scarcity, where, the scientist opines that opportunities appear more valuable when they are less available. Understanding the way people act towards each other, as well as learning the skills to ethically apply this scientific information, is a core competency for mediators.

© 2007 IUP . All Rights Reserved.

Unilateral-modification Provisions in Employment Arbitration Agreements

-- Michael L DeMichele and Richard A Bales

In Unilateral-modification clauses one party has the unfettered rights to amend or reject the underlying contract, often with neither notice to, nor consent from the other party. Some Courts enforce unilateral employment arbitration agreements and most Courts refuse to enforce them. Of course, the reasons differ. Some Courts refuse on the ground such as lack of consideration, some on illusory promises, and some on indefiniteness. Some employers alter arbitration rules after a dispute had arisen and in most of the occasions in the middle of an arbitration hearing. This article criticizes the unilateral-modification provisions in employment arbitration agreements as they give unrestricted right to one party to modify the arbitration agreement. Employers tend to choose altering the terms and conditions. Such clauses in the arbitration agreement make an employer promise to arbitrate illusory and the arbitration agreements unconscionable. The second part of the article puts before the reader the history of the enactment of the Federal Arbitration Act. Part 3 criticizes the differences of opinion between the Federal and State Courts on the enforceability of unilateral-modification provisions. In Part 4 the author suggests a three-step approach, which should be adapted by the Courts while dealing with such agreements. This article provides a step-by-step framework that Courts can use to analyze the enforceability of unilateral-modification clauses in employment arbitration agreements.

© 2006 Hofstra Labor and Employment Journal. This paper was earlier published in the Hofstra Labor and Employment Journal, Vol. 24, No. 63. Reprinted with permission.

Extending OWBPA Notice and Consent Protections to Arbitration Agreements Involving Employees and Consumers

-- Christopher J Kippley and Richard A Bales

The Federal Arbitration Act (FAA) was created in 1925 to permit judicial enforcement of arbitration agreements covering commercial contract disputes between parties with roughly equal bargaining power. Today, however, the FAA is the legal authority for judicial enforcement of arbitration agreements covering not only contractual claims but also statutory claims, and not only of disputes between commercial entities but also disputes involving parties with grossly disparate bargaining power such as companies and employees/consumers. Moreover, the Supreme Court has interpreted the FAA as strongly favoring arbitration, and the Court has used preemption analysis to restrict the ability of states to regulate arbitration agreements. This has led many commentators to argue that the FAA is ill-suited to its new use—that it is unfair to permit companies to foist arbitration agreements on employees and consumers who have little understanding of what they are signing, and in any event have no meaningful choice if they want the job or product or service the company is offering. In 1990, Congress faced a similar problem in a different context. Congress was amending the Age Discrimination in Employment Act (ADEA) to prohibit employers from discriminating on the basis of age in the administration of employee benefit plans. Congress wished to give employees the ability to agree to early retirement and to settle benefit claims, but was concerned that employers would coerce older employees into accepting grossly unfair agreements that the employees did not understand. Congress responded by passing the Older Workers Benefit Protection Act (OWBPA). The OWBPA presumes that a waiver of ADEA rights is not knowing and voluntary (and therefore is unenforceable) unless certain procedural requirements are met. For example, the waiver must be written in a manner calculated to be understood by an average employee, the employer must advise the employee in writing to consult with an attorney prior to signing the agreement, and the employer must give the employee at least 21 days within which to consider the agreement. This article argues that Congress should amend the FAA to add suitably-modified OWBPA-like notice requirements to arbitration agreements directed at most employees and consumers. This approach will help ensure that employees and consumers understand what they are signing, and thereby may encourage some companies to draft arbitration agreements that are substantively more balanced. This approach is not, however, a panacea that will cure all the ills of arbitration, but instead is designed as a politically feasible, incremental improvement on employment and consumer arbitration.

© 2007 Nevada Law Journal. This paper was earlier published in the Nevada Law Journal. Reprinted with permission.

Legal Perspectives

Arbitration Under New Rules of the International Commercial Arbitration Court in Moscow

-- Roman O Zykov

This article is a review of new Rules of the International Commercial Arbitration Court (ICAC) in Moscow, effective since March 1, 2006. The Rules observed the latest developments in international commercial arbitration aiming at promotion of an effective and speedy arbitration in Russia. It is natural, that together with the growth of Russian international business transactions, the number of commercial disputes has increased accordingly. Having a long history and extensive experience the ICAC has become one of the top venues for international commercial arbitration. It is noted that the number of disputes between non-Russian parties has risen immensely during the last decade. The author trusts that in the light of the existing economic cooperation between Finland and Russia the article will be useful for students, scholars, and practicing attorneys.

© 2006 University of Turku and Roman O Zykov. This article was earlier published in the Nordic Journal of Commercial Law, Issue 1, Reprinted with permission.

Book Review

Arbitration Agreements and Awards: Law of International and Domestic Arbitration

-- Author: Ashwinie Kumar Bansal Reviewed by V Nageswara Rao

International Commercial Arbitration plays a vital role in resolving transnational business disputes, which arise in the global marketplace. This book deals with the evolution of law related to International Commercial Arbitration, enforcement of foreign awards in India, the pivotal subjects of foreign arbitral award and domestic award, the legal position under the Geneva and New York Conventions, etc. Statutory provisions regarding the procedure for enforcement of the Convention awards also have been discussed elaborately.

© 2006 Fali S Nariman. All Rights Reserved. IUP holds the copyright for the review.