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Iran, nukes and alternative dispute resolution

V. John Ella//May 14, 2015//

Iran, nukes and alternative dispute resolution

V. John Ella//May 14, 2015//

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The negotiations involving Iran’s nuclear program have included some of the same universal dynamics that lawyers and mediators see in resolving civil lawsuits. In their 1981 best-selling book on dispute resolution, “Getting to Yes,” Roger Fisher and William Ury of the Harvard Negotiation Project discussed many examples of international diplomacy (including the negotiations that led to the release of the American Embassy hostages in 1981 to highlight strategies for any type of negotiation. What lessons can we learn from this latest round of negotiations in 2015?

  • Not having the ultimate decision-makers at the negotiation table makes resolution difficult.

Magistrates know this. Someone with full authority needs to be involved in negotiating a final agreement. Sometimes a settlement conference can take 10 hours of horse-trading, concessions, a cold hard consideration of risks and alternatives to settlement, and even physical and emotional commitment to the process. If you ultimately agree to pay $100,000 but have to take it to the CEO out of state the next day to approve, it is too easy for her to say $90,000. (It is bad enough when those who were not present at the negotiation merely criticize or second-guess the binding outcome.) It takes both (or all) sides to settle, and often dollar amounts in a civil settlement are very close to the minimum the plaintiff would take and the maximum the defendant is willing to pay. A well-negotiated settlement, defined as one where neither party is happy, is like a house of cards. It may in the best interests of both sides, but it does not take much to knock it down.

In the case of the Iran nuclear program, players from all sides are criticizing the proposed terms, including Congress, Supreme Leader Ali Khamenei and Israeli Prime Minister Benjamin Netanyahu. The U.S. comes into this faceoff with some leverage, as international sanctions have been effective. Its position is similar to a defendant who has dismissed some claims and won a discovery motion. But sanctions by counties other than the U.S. may not be sustained if the negotiations fail. The chances of a civil case going to trial, about 1 percent, about the same as war with Iran, but the potential cost and damage of either scenario tends to keep parties at the table.

  • Time is often as important as money.

Money is not the only variable in many negotiations. When settling a dispute over a non-compete agreement, for example, plaintiffs need to accept that no restriction lasts forever, and preventing harm for a year, or two, with the understanding that eventually the defendant will be able to compete openly, is better than no restriction at all. Similarly, the terms being discussed with Iran involve a 10-year ban on certain types of uranium enrichment and other weapons building capacity, which, understandably, has been highly criticized. But 10 years from now circumstances may be conducive to further discussions, and use of force could still be an option. Putting off until tomorrow what could be a problem today can be a good thing.

  • Positive economic relations are better than conflict.

Businesses that square off in litigation often have a history, and a potential, of doing business with each other. Sometimes getting the parties to consider how they could work together to mutual economic benefit, instead of spending money on lawyers, can be a creative path to dispute resolution. Similarly, the benefit of normalized economic relations between Iran and the west has potential benefits.

  • Hard work can pay Off.

While it remains to be seen if a deal is actually reached, and whether it turns out to be a good deal, one must appreciate the effort that has gone into these negotiations, including at least 13 rounds of talks in Switzerland and Austria over 14 months.

  • But sometimes a party truly has no interest in settlement.

Some lawsuits simply cannot be settled. Often this is due to an irrational litigant. If certain factions of Iranian leadership refuse to endorse a deal with the Great Satan under any terms, at least we can say we tried.

V. John Ella is an attorney at the Minneapolis office of Jackson Lewis P.C.

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