Negotiation Skills and Strategies in Co-Resolution

Following the last training, a number of would-be co-resolvers expressed curiosity about the particular approaches or skills it would be appropriate to negotiating under the co-resolution structure.

For a bit of perspective, early teachings on negotiation focused on hard bargaining.  Under this approach, negotiators would fight to control cursory aspects of the negotiation (such as where the discussion would be held) and employ take-it-or-leave-it tactics.  Though successful from a position of unquestioned strength, this approach made agreement less likely and was detrimental to relationships.

In reaction, members of Harvard's program on negotiation proposed "principled negotiation" strategies that involved focusing on interests, exploring options for mutual gain, and leveraging BATNAs (best alternative to negotiated agreement) when seeking concessions.  However, these strategies are directed at one side of the negotiation and struggle with questions about how to deal with a deceptive or overly competitive opposing negotiator.  Co-resolution skirts these problems by aligning the strategies of both negotiation coaches.  Therefore, the following approach can be used by both co-resolvers in coaching the disputants to negotiate under their highest values and aspirations.

Preparation:

Starting at the upper left corner of this flowchart, the coach listens to the perspective of their own disputant, breaks down this input into underlying interests and the component parts of the issues in dispute, and ranks these elements from most important to least important to the disputant.  The co-resolver then observes the values motivating the disputant and asks the disputant how they ideally see themselves negotiating with the other side.  The same analysis is then applied to the other side, and these inquests can occur during both joint sessions and caucus.

Dividing up the perspectives into smaller elements and underlying motivation is vastly important.  A negotiation will be more flexible and more likely to reach resolution when as many possible aspects of the disagreement are on the table.  Also, breaking perspectives down into smaller pieces guides the co-resolvers and disputants into better understanding the dispute.  Finally, because people tend to see themselves as reasonable, identifying and anchoring the disputants into their self-perceived values will motivate them to act as their best selves at the negotiation table.

It is also important to analyze the BATNAs of each side and the zone of possible agreement between them, because this defines the leverage and power differential between the disputants.  However, the BATNAs are at the bottom of the chart because the co-resolvers should coach the parties to negotiate with their higher interests and values before resorting to power struggles.  Also, aside from the goal of conducting the negotiation using values instead of power, BATNAs can be unreliable or dangerous as the basis of bargaining.  Especially in negotiating disputes (as compared to business deals), disputants have different and inflated senses of their alternatives to a negotiated agreement--if both sides believe they will win in a court battle (you don't have to be an attorney to tell them this is not possible), then neither side has incentive to reach a negotiated agreement.

Negotiation:

Before beginning the negotiation, the co-resolvers need to prep the disputants into the negotiation mindset.  In joint session or initial caucus, each co-resolver should explain to their disputant that, because the only possible outcome of the process is through agreement, that they need to identify what they want and persuade the other side to want the same things.  The co-resolvers should also convince the disputants that they need to get inside the other side's head and, to do this, they must attempt to understand their desires and motivations.

Once the disputants are in a healthy frame of mind, the negotiation should begin with a conversation before offers and requests are exchanged.  Here, the disputants should be encouraged to discuss their differing perspectives and attempt to understand the other side.  This storytelling phase should be conducted in a relaxed, informal manner.  Co-resolvers should remind their disputants to provide reasons for their actions and expectations.

After this exploratory phase, each side can begin to structure and exchange offers and counteroffers.  Every offer is both influence (affecting the other side's perspective and expectations) and information (revealing your sides expectations and abilities).  The choice of whether or not to make the first offer is a balance between anchoring and uncertainty--the first offer tends to affect the other side's expectations ("anchoring") but can also give away too much.  Therefore, the first offer can be beneficial but should be reserved if your side is informationally disadvantaged.  Each side should be encouraged to open with an offer that they can justify as acceptable to the other side.  Counteroffers are then exchanged as alternative perspectives on what is reasonable.  Concessions between counteroffers motivate movement through reciprocity and leave both disputants satisfied that, even though they gave up some demands, the other side gave up demand as well.

Through these steps, the disputants work towards building a mutually-acceptable agreement.  The first step towards this goal is to define the disagreement, bringing the disputants to explain the parameters and reasons for each element of the disagreement.  The co-resolvers should then expand the scope of the negotiation, explore trades between these smaller components, and encourage their respective disputants to benefit the other side in exchange for concessions.  Using the above chart, the co-resolvers can direct the disputants to apply the other side's values to their own interest in making requests and apply their values to the other side's interests when making concessions.

I like this last idea, so I will repeat it.  When making requests from the other side, take their values and frame these values in terms of meeting your side's interests.  Then, when convincing your disputant to make impactful concessions, use your disputant's values in coming up with ways to meet the other side's interests.

The above ideas are only suggestions, and each team of co-resolvers should build their own methodology that they find comfortable and natural.

Co-Resolution and the CMS Seven-Stage Model of Mediation

After the training that was generously hosted by Community Mediation Services of Central Ohio (CMS) yesterday, I was asked how co-resolution would overlap with or apply CMS's Seven-Stage Model of Mediation.

I will first point out that there could be many styles and approaches to co-resolution.  For example, some co-resolvers will prefer a fluid process that flows with the needs and direction of each case or set of disputants.  The co-resolution structure is designed to create guiding incentives within the negotiation, so whatever feels natural within an interaction is likely the correct action to take.  However, as dispute resolution professionals are first learning co-resolution, more structure could be helpful.

The Seven-Stage Model

The CMS Seven-Stage Model is a tightly-structured framework for mediation.  It involves:
1.)  Introduction
2.)  Storytelling/Problem-Determination
3.)  Summarizing
4.)  Issue/Interest Identification
5.)  Generating/Evaluating Alternatives
6.)  Agreement
7.)  Closure

The introduction is the initiating of the process in which the mediator explains the process and sets the ground rules.

In the storytelling phase, the mediator invites party input in and identifies problem behaviors.  Problem behaviors are specific past or future behaviors that the other disputant did/did not do or will/will not do.  It is important to focus the parties on the behaviors and not their interpretations of behaviors (e.g., "she is rude," "this is unfair").  The mediator then probes for the emotional effect or other effects that resulted from the problem behavior (e.g., "it sounds like that was frustrating for you," "so you're saying that this cost you time and money?").

The mediator then summarizes key information, confirming that the speaker was understood, testing the accuracy/completeness of the statements, and focusing the parties' attention on useful information.  In a mathematically-precise method, the mediator then transposes the problem behaviors into "issues" that will be discussed as agenda items and the emotional/other effects into "interests" that will guide the discussion.

The mediator guides the parties through the issues, encouraging them to trade proposals or brainstorm solutions, until they reach impasse or resolution on all identified issues and interests.  Finally, the mediator wraps up the process and sends the parties off with guidance and whatever agreement has been reached.

Applying the Seven-Stage Model in Co-Resolution

Like mediation, co-resolution is a process of facilitated negotiation, drawing input from the parties and then guiding an exchange of proposals for resolution.  Unlike mediation, however, co-resolution
is conducted by partisan conflict coaches rather than an impartial mediator--this does not mean co-resolution cannot draw on or be structured on the Seven-State Model.  While I would note that there is no "wrong" way to apply the co-resolution structure, here are some details for how a co-resolution could be conducted:

1.)  The co-resolvers gather the disputants at the table, make introductions, explain the basics of the process (roles, ground rules, and caucuses), and assign a co-resolver to each disputant.

2. and 3.)  The co-resolvers then ask who initiated the process, suggest that this person explain what brings them to the table (storytelling).  After or as a party explains their perspective on the dispute, their own co-resolver is attempting to promote the positive aspects of the story, presenting the party in an understandable/positive light to the other side and focusing their party on important/useful elements of their case.  During this time, the opposing co-resolver is asking clarifying/narrowing questions across the table.

This combination of the storytelling and summarizing phases allows the co-resolvers to draw out and analyze party input while maintaining their partisan roles.  Each co-resolver should keep in mind that they are helping the assigned disputant--this will bring them to empathize with their party's perspective as it is being expressed.

4.)  After both parties have expressed their perspectives, the co-resolvers will caucus with each of their assigned parties separately.  This is an opportunity to solicit more input (parties are often more open and comfortable alone with their coach and away from the other disputant), identify issues and interests, and strategize a game plan for the negotiation.

5.)  The co-resolvers then bring the parties back into joint session and conduct the negotiation.  While strategies such as brainstorming that are available in the Seven-Stage Model can be appropriate in co-resolution, co-resolvers are not impartial and are therefore able to make suggestions, express counterpoints to the other side, and promote effective negotiation behavior by their own disputants.

6.)  Just as the co-resolvers guide the negotiation as cooperative-yet-opposing coaches/advocates, the co-resolvers can also guide the creation of an agreement, making sure that the interests expressed by their respective disputants are addressed in the proposed terms.

7.)  The end of the process offers an opportunity for each coach to check in with their disputant and provide parting advice on implementing their agreement and interacting with the other party.  Closing is also unique in co-resolution because the co-resolvers can touch base with each other to discuss procedural matters between sessions within a dispute and air out concerns with each other's conduct at the end of the case.  This debriefing helps to maintain a positive working relationship and effective strategies between teams of co-resolvers.

I hope this is helpful and look forward to further interactions with CMS.

Co-resolution Journal: Conducting a Negotiation

[the following is based on an actual co-resolution case but, in order to maintain confidentiality, I will be incredibly vague and even misleading on the details that do not pertain to negotiation moves, actions, and arguments]

My co-resolver and I were conducting a change of custody from a parent to a non-parent.  The non-parent was a relative of the parent that was absent from the table and, apparently, from the child's life.  I was assisting the parent and my co-resolver was assisting the non-parent.

We started the process in a joint session and learned that the parties had agreed to the change in custody prior to coming to the table and needed little assistance in proposing a mutually-agreeable parenting time arrangement.  The parties were both putting effort into expressing the sense of cooperation between them; however, when money issues such as child support arose, they both became very quiet.  At this point my co-resolver called for a caucus.

I took my party, the parent, to a separate conference room, rehashed the progress that had been made thus far and asked her for reactions.  I then conveyed my sense of the situation--she, Parent was agreeable to Non-parent having custody, Non-parent was willing to take custody, but money was going to be an issue (based on the noticeable discomfort in both parties when the topic arose).  We then discussed Parent's thoughts on the subject, Parent's economic situation, and the amount of child support the absentee parent was ordered to pay, thereby building a base of knowledge for the two of us to collaboratively prepare boundaries, strategies, and arguments for the negotiation.  We decided that we would not throw around numbers (possibly ending up negotiating against ourselves), but go in to the next joint session open to hear what Non-parent had to say, respond with her concerns, and then caucus again if necessary.

At the outset of the next joint session, I politely and subtly deferred to the other side to initiate the discussion. The other co-resolver then identified issues that had remained unresolved: child support and tax exemption.  I suggested that we discuss tax exemption first--Non-parent made much more, so Parent was entirely willing to concede the tax exemption issue.  In caucus, we had decided that we would start with this concession to show good faith, engender appreciation from Non-parent, and avoid tit-for-tat trading.  Speaking for herself, Parent explained why she wanted Non-parent to have the tax exemption.  Non-parent quietly accepted and Non-parent's co-resolver expressed appreciation for the concession.

Deferring to the agenda, Non-parent's co-resolver raised the issue of child support and then began to talk about all of the child's expenses that their side had discussed in caucus.  I expressed the appreciation for Non-parent's undertaking these expenses that Parent had raised in caucus and then asked whether they were asking for reimbursement for expenses or a specific amount per month in support.  Non-parent expressed that she wanted a regular and fair amount but did not want to touch the back support Parent was receiving from the absentee parent, as that money was already owed to Parent.  Parent became emotional in a genuine catharsis, expressed that Parent would still have a different child at home even with the transfer in custody and that, as a result, Parent's overall expenses would not be reduced much (an argument we had discussed in caucus).

I then suggested a caucus and, when we got back into our conference room, Parent was willing to give a number.  Because the number Parent suggested was a bit more than the absentee parent paid in monthly child support, I suggested that we use that argument to show that it was fair.  When we returned, I structured our proposal to the other side, pointing out that Non-parent wanted a fair amount and that Parent was willing to pay slightly more than the Court had ordered the absentee parent to pay.  Non-parent immediately and placidly accepted.

The time elapsed from raising the money issues--including two caucuses, an emotional catharsis, and the resolution of two arguments--was fifteen to twenty minutes.  The other co-resolver mused that, under the less-involved assistance of a mediator, the case may not have been resolved.  Apparently, Non-parent was entirely uncomfortable with talking about money issues (though they were important) and wanted the co-resolver to do the majority of the talking for their side.

Because the parties were able to trust and relax around their respective co-resolvers and because the co-resolvers were able to insert professionalism, artfulness, good arguments, and wise guidance into the negotiation, this matter was resolved quickly, thoroughly, and to the full satisfaction of the parties.

A Case for the Ethicality of Co-resolution

I would like to take a moment (that coincidentally falls right after the moment that I completed a letter requesting an advisory opinion from the Ohio Supreme Court Board of Commissioners on Grievances and Discipline concerning the ethicality of co-resolution) to make a thoroughly-researched case for the ethicality of co-resolution.

The short version is that co-resolution is not the unauthorized practice of law and co-resolvers are not acting as attorneys.  The long version is as follows:

I.                   The Right to Choose an Alternative to Litigation and Legal Assistance

First, it must be noted that parties have the right to mutually choose the process (e.g., facilitated negotiation, arbitration, litigation) by which they handle their dispute.  This means that parties have the right to not litigate their dispute and not approach attorneys.[1]  Judicial wisdom supports the right to avoid litigation,[2] and the Federal Arbitration Act (which is enacted verbatim in the Ohio Arbitration Act[3]) has allowed parties to enforce agreements to approach non-legal/non-court processes of dispute resolution.[4]  Taking a look beyond the quasi-judicial process of arbitration, the lack of definition of “arbitration” in the Federal Arbitration Act[5] has led courts to grant parties broad discretion in the procedures by which they handle their disputes without approaching courts or attorneys.[6]  To be clear, I am not arguing about the enforceability of an agreement to stay litigation and compel co-resolution—I am merely, pointing out that the law affords parties the ability to choose non-court/non-legal forums in handling their disputes.  However, going beyond the right to not litigate, the ABA Model Rules of Professional Conduct impose a duty on attorneys to inform clients of feasible alternatives to litigating their legal rights,[7] and “[s]everal jurisdictions encourage, but do not require, lawyers to inform clients of ADR options.”[8]  Thus, if both parties agree to forgo litigation and legal assistance, they may temporarily “contain” their dispute in an alternative process to litigation.

The key result of this right to not litigate is that parties to a dispute have the right to choose between bringing either attorneys or non-attorney advocates to the negotiation table in these contained or mutually-agreed-to processes. Tried and true examples of non-attorney advocates chosen over attorneys in resolving disputes include union representatives,[9] financial experts hired as representatives in securities disputes,[10] sports agents,[11] and lay advocates in administrative hearings concerning welfare benefits,[12] Social Security applications,[13] and others.[14]  Even in active court cases, parties can avoid legal expenses by agreeing to employ CASA advocates, instead of attorney Guardians ad Litem, to act as advocates in the litigation process.[15] 

Access to non-legal advocates does not equate to a diminution of justice in the system.  Parties who have access to lay advocates have, in some studies, expressed greater satisfaction with their non-attorney advocates than similarly-situated parties did of their attorney advocates.[16]  Non-attorney advocates can use expertise in areas other than legal knowledge during a negotiation[17] and can be more accessible to parties who cannot afford the assistance of a legally trained and licensed attorney.[18]

Co-resolution applies this concept by offering communication, coaching, and cooperative negotiation skills as the substantive area of expertise of the non-attorney advocates.

II.                Conflict Coaching and Ethical Concerns with Non-Attorney Negotiators

Co-resolution provides each disputant with a cooperative “conflict coach” to directly assist them in the negotiation.[19]  Conflict coaching is “a one-on-one process in which a trained coach helps individuals gain increased competence and confidence to manage and engage in their interpersonal conflicts and disputes.”[20]  This process emerged in the 1990s from the fields of alternative dispute resolution and executive coaching[21] and tends to promote the cooperative approach to resolving disputes that is described in such books as Getting to Yes.[22]  Some have argued, because both law-focused attorneys and communication-focused non-attorneys each offer unique benefits in a cooperative, non-legal negotiation forum such as mediation,[23] that ethical rules concerning the unauthorized practice of law should be modified to allow for the direct assistance of either attorneys or non-attorneys.[24]

However, because conflict coaches hold themselves out as negotiation assistants, if they operated independently and sat at the table during a negotiation it might create ethical concerns with the unauthorized practice of law.[25]  While this concern has not been explored in the literature or the case law, problems may arise when the non-attorney conflict coach directly assists a party in negotiating a pending legal action against an attorney.

Consider a situation in which one party to a pending legal action hires a non-attorney conflict coach to provide one-on-one assistance in negotiating cooperatively and the other party hires an attorney.  The disputant with the cooperative, non-attorney conflict coach may be at a disadvantage in the negotiation because the party with the attorney would be able to use competitive negotiation tactics to take advantage of cooperative negotiation behavior and would be able to offer a one-sided perspective on how the court would handle the case if resolution was not reached.  This concern appears to be pinpointed by Ohio case law on the subject.

The Ohio Supreme Court has defined the practice of law as “(1) legal advice and instructions to clients advising them of their rights and obligations; (2) preparation of documents for clients, which requires legal knowledge not possessed by an ordinary layman; and (3) appearing for clients in public tribunals and assisting in the interpretation and enforcement of law, where such tribunals have the power and authority to determine rights of life, liberty, and property according to law.”[26]  While the Court initially held that the practice of law is not limited to appearance at court,[27] when a district court applied this ruling to define the practice of law as “all advice to clients and all action taken for them in matters connected with the law,” the Ohio Supreme Court overruled this as being an overbroad definition of the practice of law.[28]

In dealing with non-attorneys engaging in the unauthorized practice of law by assisting or participating in negotiations, the Ohio Supreme Court has found such violations when a person, on behalf of another and without the consent of both parties, contacted the opposing party with a letter that implied a discrimination claim, threatened legal action, and offered a $200,000.00 settlement.[29]  Obviously, evaluation of legal rights and the dollar value of a potential court case are actions that should only be conducted by attorneys.  The Ohio Supreme Court has cited this case, stating “[w]e have repeatedly held that nonlawyers engage in the unauthorized practice of law by attempting to represent the legal interests of others and advise them of their legal rights during settlement negotiations,”[30] in addressing situations in which non-attorneys negotiate directly against attorneys[31] or negotiate pending litigation against the other party directly.[32]

The common thread in these cases (and the key distinction between these cases and the fully-legal and common non-attorney advocates described in the previous section[33]) is that the non-attorneys who were found in violation of UPL statutes were acting alone and outside of a defined process that is “contained” from court-involvement, such as mediation, arbitration, or administrative hearings.  Outside of defined processes such as mediation and arbitration, “which clearly represent a track apart from the traditional litigation route, negotiation remains for many nothing more than a component of the litigation process.”[34]  Out in the open, litigation is a possibility looming over negotiations and, therefore, non-attorneys may end up negotiating against attorneys.

The purpose of unauthorized practice of law statutes is to protect the public from unskilled legal advice, not to limit the type of advocacy that parties can mutually choose.[35]  So long as both parties agree to the process, the situation becomes akin to mediation and arbitration and less akin to one person operating an “advocacy” service.

Thus, a conflict coach who is operating independently of a defined system may face unauthorized practice of law issues.  But this does not mean that the direct assistance in cooperative communication and negotiation skills, offered by conflict coaches, is a benefit that is beyond the reach of opposing parties who both want it.

III.             Co-resolution as an Ethical Process for Non-Attorney Negotiation Assistance

Co-resolution addresses these potential ethical issues by providing each party to the dispute with a conflict coach and defining the process as a contained, separate dispute resolution process.

First introduced in 2008, co-resolution is a facilitated negotiation process in which two dispute resolution professionals operate as a single service and act as a team of coaches, each assisting one disputant in negotiating under their interests.[36]  Parties approach this process together, participate voluntarily, and, afterwards, are free to pursue legal or other non-legal processes if desired.  Both coaches (“co-resolvers”) make it explicitly clear that they are not acting as attorneys and are only assisting in cooperative negotiation and communication techniques as they facilitate a resolution to the dispute.  Co-resolvers do not offer legal advice and direct the parties to consult with attorneys if they ask questions regarding their legal rights.

Thus, all of the rules that apply to mediation as a process for facilitated negotiation also apply to co-resolution.  For example:

1.      The parties must both agree to engage the process—neither side is able to compel the other into participating against their will;

2.      Participation is voluntarily and either party is free to discontinue the process (disengaging both coaches) at any time;

3.      The coaches only facilitate communication, and the parties maintain self-determination over the outcome;

4.      The coaches do not offer or provide legal advice;

5.      The coaches (like mediators) can be attorneys or non-attorneys, however, within the process they are not acting as attorneys;

6.      Each party can bring an attorney to provide legal advice during the process;

7.      The process ends when the parties reach an agreement or an impasse.

However, unlike mediation, the co-resolvers are not neutral—each one assists one party in negotiating a resolution of the dispute.

The unique benefit that co-resolution offers over other forms of negotiation-advocacy is that, because the co-resolvers act as an ongoing team within a contained process, each co-resolver is able to know that the opposing co-resolver will only support cooperative negotiation strategies.  This dynamic is the result of cooperation-inducing forces described in game theory and studies of negotiation.

First, game theory (“the study of mathematical models of conflict and cooperation between intelligent rational decision-makers”[37]) has shown that rational decision-makers will compete (seek an individual advantage) rather than cooperate (seek mutual benefit) in a single interaction.[38]  This dynamic occurs because each knows that competition garners marginal gains over attempting to cooperate.  Furthermore, each knows that the other side is operating under similar incentives to compete and must therefore compete to protect themselves from the other side’s competitive moves.  For example, consider attorneys who can either act as tough competitors or conciliatory cooperators: because each attorney operates independently (is chosen by one party), each attorney is under incentive to present themselves as a tough competitor and each party is under incentive to hire a tough attorney (for fear of what kind of attorney the other side will hire).[39]

On the other hand, if the decision-makers were to interact on an indefinitely repeating basis, both would seek to cooperate.[40]  The reason for this is that repeated cooperation (where both receive a mutually-acceptable outcome) will, over time, garner a greater outcome for each individual than repeated competition (where both parties attempt to undermine each other and end up with either a limited outcome or no outcome at all).  The power of future interaction is visible in the legal field.  As attorneys (independent advocates hired separately on a case-by-case basis) became more numerous over the past half-century, causing them to interact less frequently, their competitiveness has increased and their civility has decreased to the point of “crisis.”[41]  However, in situations where attorneys interact frequently—such as small towns,[42] small pools of public defenders and prosecutors,[43] and practice groups of collaborative lawyers[44]—cooperation and civility are enforced and protected through the advocates’ ongoing working relationship with each other.  As a result, the ongoing interaction between the co-resolvers should, in theory, keep their negotiation behavior and coaching efforts cooperative.

Next, studies of negotiation and dispute resolution have confirmed the real-world power of these strategic theories.  In informal negotiation, where there are no rules or oversight that can curb competition, the above-described game-theory pressures towards competition in a single negotiation are especially prominent.[45]  Studies have shown that, as independent advocates, attorneys are especially prone to engage in deception in settlement negotiation.[46]  However, repeated interactions between the same players have been shown to produce cooperation by “cast[ing] a shadow back upon the present and thereby affect[ing] the current strategic situation.”[47]  Supported by psychological studies of negotiation behavior, this is the reason that “[s]avvy negotiators expend time and effort to build a positive personal relationship with their opponents because such relationships can pay dividends.”[48]  The ongoing relationship and the negotiation rapport between the co-resolvers should therefore contribute to smooth interactions and amicable coaching efforts.

Thus, because co-resolvers operate through an ongoing working relationship, the assistance they provide to opposing parties is cooperative in nature—the repeated interaction between the co-resolvers motivates cooperative behavior, and each party can know that the opposing co-resolver will only assist the opposing party in cooperative negotiation behavior.  This dynamic of reliable cooperation has been demonstrated through participant surveys and anecdotal observations gathered in co-resolution pilot projects in the United States and Canada, strongly indicating that parties felt loyally supported in a cooperative negotiation environment.[49]

However, more important to the point of this letter, the insulating effect of the co-resolution process allows the co-resolvers to serve as conflict coaches without drawing concerns relating to the unauthorized practice of law.  Once again, like mediation, co-resolution is a defined, voluntary process.  The parties approach it together (each desiring to have the benefit of a negotiation coach and to work across from a cooperative opposing coach), participate voluntarily, and either reach agreement or impasse.  The co-resolvers individually assist their respective parties in communicating and negotiating effectively while also acting as a team in guiding both parties toward a mutual resolution.  Because the co-resolvers operate within a defined process, in which both parties agree to participate, there is no danger that a co-resolver will act as an attorney, operating independently and conducting settlement negotiations against an actual attorney under pending litigation.[50]

Furthermore, parties to co-resolution, like participants in mediation, operate apart from the exercise of their legal rights[51] but do not fully give up these rights.[52]  Within the facilitated negotiation of mediation or co-resolution, the parties are able to exercise self-determination and define their own agreement rather than choosing from options that would be imposed by a court.[53]  However, these parties are also free to walk away from the process, take agreements to independent attorneys for approval, and proceed to litigation if they so desire—therefore, they never give up legal rights or legal assistance by participating in co-resolution.  But, instead of relying on the parties to understand and exercise their access to attorneys and the courts, co-resolvers explain that the process is voluntary and that either party can terminate the process at any time.[54]  Regardless, parties who reach out-of-court agreement—either through co-resolution, mediation, or settlement negotiations facilitated by independent attorneys—forgo their legal rights to some degree but apparently value this decision over the uncertainty of a judicial determination of their case.[55]  Furthermore, the courts have recognized a strong public policy that favors settling cases efficiently to avoid prohibitive legal fees for the parties.[56]

Skeptics of co-resolution may see two coaches sitting next to separate parties, assisting them in discussing and negotiating their dispute, and improperly label the process as the unauthorized practice of law or a violation of legal ethics.  However, doing so would ignore the plethora of non-attorneys who assist, negotiation, and advocate for parties, affecting potential legal rights in many fields and, yet, operating outside of potential court involvement.[57]

The key to keeping non-attorney advocates ethical is containing or proscribing their assistance away from pending litigation—so long as the non-attorney advocates are operating in a defined process, they are not in danger of taking the role of legal advocate.  Co-resolution is a defined process, mutually undertaken by both parties like mediation and arbitration, and also like mediation and arbitration, it is clearly separate and apart from the litigation process.[58]

In conclusion, the conflict coaches who assist the parties in communication and negotiation within the co-resolution process are not acting as attorneys and should not be in violation of legal ethics rules or unauthorized practice of law statutes.

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[1] Blinco v. Green Tree Serv., Inc., 366 F.3d 1249, 1252 (11th Cir. 2004) (citing , Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“The arbitrability of a dispute similarly gives the party moving to enforce an arbitration provision a right not to litigate the dispute in a court and bear the associated burdens”).

[2] See Hon. Ron Spears, Lincoln Warnings: ‘You Have the Right to Avoid Litigation…’, 94 Ill. B.J. 438 (2006).

[3] Ohio Rev. Code Ann. §§ 2711.01-.24 (West 2008). The Ohio Arbitration Act applies to written contracts and expressly declares them “valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.” § 2711(A). This language is exactly the same as the language in the FAA. See 9 U.S.C.A. § 2 (West 2008).

[4] United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960) (ruling that a federal court may compel an employer to submit a union's grievance to arbitration); United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593 (1960).  Like the Federal Arbitration Act, the Ohio Arbitration Act has similarly been interpreted to create a presumption of validity regarding the enforceability of written contracts containing arbitration agreements. OHCONSL § 21:3.  For Ohio case law, see Maestle v. Best Buy Co., (2003) 100 Ohio St.3d 330, 334 800 N.E.2d 7 (“We hold that a trial court considering whether to grant a motion to stay proceedings pending arbitration filed under R.C. 2711.02 need not hold a hearing pursuant to R.C. 2711.03 when the motion is not based on R.C. 2711.03.”), and describing the strong public policy favoring arbitration/mediation alternatives to the courts, see Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 700 N.E.2d 859 (1998), ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 500, 692 N.E.2d 574 (1998). Where there are doubts regarding the application of an arbitration clause, such doubts should be construed in favor of arbitrability. Council of Smaller Enterprises v. Gates, McDonald & Co., 80 Ohio St.3d 661, 666, 687 N.E.2d 1352 (1998)

[5] Thomas J. Stipanowich, The Arbitration Penumbra: Arbitration Law and the Rapidly Changing Landscape of Dispute Resolution, 8 Nev. L.J. 427, 434-435 (noting “the silence of the FAA and UAA regarding the definition of arbitration, coupled with the fact that federal and state statutes establish no formal requirement that arbitration agreements be explicitly identified as such…”).

[6] Salt Lake Tribune Publ'g Co. v. Mgmt. Planning, Inc., 390 F.3d 684, 690 (10th Cir. 2004) (“Parties need not establish quasi-judicial proceedings resolving their disputes to gain the protections of the FAA, but may choose from a broad range of procedures and tailor arbitration to suit their peculiar circumstances.”).

[7] Model Rules of Prof’l Conduct R. 2.1 cmt. (1983) (stating that “when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation”).

[8] Robert F. Cochran Jr., Professional Rules and Adr: Control of Alternative Dispute Resolution Under the ABA Ethics 2000 Commission Proposal and Other Professional Responsibility Standards, 28 Fordham Urb. L.J. 895, 904 (2001)

[9] Lisa B. Bingham et al., Exploring the Role of Representation in Employment Mediation at the USPS, 17 Ohio St. J. on Disp. Resol. 341, 359, 363-66 (2001) (presenting surveys of mediation participants who were unrepresented, represented by an attorney, represented by a fellow employee, or represented by a union representative).

[10] Justine P. Klein, Non-Attorney Representation, 63 Fordham L. Rev. 1605, 1608 (stating “They also took the position that non-attorney representatives took these cases at a cost that was less than that which would be charged by lawyers. They also made the argument that because a number of non-attorney representatives were former securities industry people, they provided a level of expertise that a customer doesn't always get when retaining a lawyer  . . . It is clear that these non-attorney representatives do provide some access and they do provide a freedom of choice.”).

[11] Stacey B. Evans, Sports Agents: Ethical Representatives or Overly Aggressive Adversaries?, 17 Vill. Sports & Ent. L.J. 91 (2010) (“Degree Directory defines a sports agent as someone who “handles contract negotiations, public relations issues and finances, and he or she will often procure additional sources of income for the athlete (such as endorsements).”).

[12] See Earl Johnson, Jr., Justice for America's Poor in the Year 2020: Some Possibilities Based on Experiences Here and Abroad, 58 DePaul L. Rev. 393, 416-417 (2009).

[13] Drew A. Swank, Non-Attorney Social Security Disability Representatives and the Unauthorized Practice of Law, 36 S. Ill. U. L.J. 223, 224 (2012) (“Before the Social Security Administration, Bob's actions are not only completely legal, they are a common, everyday occurrence for approximately five thousand  non-attorney representatives.”).

[14] Id. at 234 (“As administrative agencies were designed without the formalities and rules of the courts, they were ideally suited for non-attorney representatives. As the number of administrative agencies increased, so too did the opportunities for non-attorneys to practice law. Historically, non-attorneys have routinely appeared before certain federal administrative agencies.”).

[15] Gerard F. Glynn, The Child Abuse Prevention and Treatment Act-Promoting the Unauthorized Practice of Law, 9 J. L. & Fam. Stud. 53, 74 (2007) (“The non-lawyer advocate can provide the investigation, monitoring and follow-up that lawyers do not have the time or receive adequate pay to do…”).

[16] Bingham et al., supra note 9, at 364-71.

[17] Herbert M. Kritzer, Legal Advocacy: Lawyers and Nonlawyers at Work 77, 111-49 (1998) (noting that “formal training (in the law) is less crucial than is day-to-day experience in the unemployment compensation setting”); see also Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, 37 Fordham Urb. L.J. 37, 38 (2010), at 3, 47-48 (noting importance of not just any advocate, but an advocate with specialized expertise).

[18] Kay Hennessy Seven and Perry A. Zirkel, In the Matter of Arons: Construction of the Idea's Lay Advocate Provision Too Narrow?, 9 Geo. J. on Poverty L. & Pol'y 193 (2002) (“Non-attorneys or lay advocates with specialized knowledge can facilitate access to the legal system for parties with restricted financial means who do not have the legal skill or knowledge to represent themselves.”); see generally Marcus J. Lock, Increasing Access to Justice: Expanding the Role of Nonlawyers in the Delivery of Legal Service to Low-Income Coloradans, 72 U. Colo. L. Rev. 459 (2001); Alex J. Hurder, Nonlawyer Legal Assistance and Access to Justice, 67 Fordham L. Rev. 2241 (1999)

[19] See Nathan Witkin, Co-resolution: A Cooperative Structure for Dispute Resolution, 26 Conflict Resol. Q., 239 (2008).

[20] Cinnie Noble, Conflict Management Coaching: The CINERGY Model 12 (2012); see also Tricia S. Jones and Ross Brinkert, Introducing the One-on-One Dispute Resolution Process Conflict Coaching: Conflict Management Strategies and Skills for the Individual (2008) (defining conflict coaching as “a process in which a coach and client communicate one-on-one for the purpose of developing the client's conflict-related understanding, interaction strategies and interaction skills.”); see also Ross Brinkert, ADR Plus One: Developing ADR Practice Through Coaching (May 2003), abridged version available at www. mediate. com; see also Cinnie Noble, Conflict Coaching: A Preventative Form of Dispute Resolution” (2002) and “Mindfulness in Conflict Coaching (2006), both available at www.mediate.com.

[21] Cindy Fazzi, Introducing . . ., 64 Disp. Resol. J. 90, 90.

[22] Roger Fisher and William Ury, Getting to Yes (2^nd ed. 1991).

[23] Sida Liu, Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court, 31 Law & Soc. Inquiry 75, 95 (2006) (observing that “skills required in mediation are no longer legal knowledge, but mostly interpersonal skills and familiarity with the customs of the local community” or “nonlegal skills”).

[24] Jean R. Sternlight, Lawyerless Dispute Resolution: Rethinking A Paradigm, 37 Fordham Urb. L.J. 381, 411-12 (2010) (arguing that “the need for providing emotional support, self-agency, and an endorsement or reputational boost of the sort discussed by Sandefur may be just as great or even greater in mediation or arbitration than in litigation . . . [but that] . . . rather than assume that the substitution of non-attorney-representatives for attorneys makes more sense in ADR than in litigation, we should rethink the rules on unauthorized practice of law with respect to all forms of dispute resolution.”).

[25] Ohio Rev. Code Ann. §§4705.07(A): No person who is not licensed to practice law in this state shall do any of the following: (1) Hold that person out in any manner as an attorney at law; (2) Represent that person orally or in writing, directly or indirectly, as being authorized to practice law; (3) Commit any act that is prohibited by the supreme court as being the unauthorized practice of law.

[26] Worthington City School Dist. Bd. of Edn. v. Franklin Cty. Bd. of Revision, 85 Ohio St.3d 156, 707 N.E.2d 499, 503-504 (1999), citing Mahoning Cty. Bar Assn. v. The Senior Serv. Group, Inc. (Bd.Commrs.Unauth.Prac. 1994), 66 Ohio Misc.2d 48, 52, 642 N.E.2d 102, 104.

[27] Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23 (1934) (“The practice of law is not limited to the conduct of cases in court. It embraces the preparation of pleadings and other papers incident to actions and proceedings on behalf of clients before judges and courts…”).

[28] Dayton Bar Association v. Lender’s Services Inc., 40 Ohio St. 3d 96 (1988) (“the mere use of legal terms of art…does not, standing alone…constitute the practice of law”).

[29] Cleveland Bar Assn. v. Henley, 95 Ohio St.3d 91 (2002).

[30] Cincinnati Bar Assn. v. Foreclosure Solutions, L.L.C., 123 Ohio St.3d 107 (2009).

[31] Disciplinary Counsel v. Brown, 121 Ohio St.3d 423 (2009) (stating that “one who purports to negotiate legal claims on behalf of another and advises persons of their legal rights…engages in the practice of law”) (emphasis added).

[32] Cincinnati Bar Assn., 123 Ohio St.3d 107.

[33] See Section I., supra, footnotes 9-15

[34] Robert C. Bordone, Fitting the Ethics to the Forum: A Proposal for Process-Enabling Ethical Codes, 21 Ohio St. J. on Disp. Resol. 1, 13-14 (2005) (“Unlike arbitration and mediation, which clearly represent a track apart from the traditional litigation route, negotiation remains for many nothing more than a component of the litigation process.”).

[35] See In re Opinion No. 26 of the Comm. on the Unauthorized Practice of Law, 654 A.2d 1344, 1350 (N.J. 1995); see also Morley v. J. Pagel Realty & Ins. Co., 550 P.2d 1104, 1107 (Ariz. Ct. App. 1976) (“purpose is to protect the public from the intolerable evils which are brought upon people by those who assume to practice law without having the proper qualifications”) (quoting Gardner v. Conway, 48 N.W.2d 788, 794 (Minn. 1951)); Beach Abstract & Guar. Co. v. Bar Ass'n, 326 S.W.2d 900, 903 (Ark. 1959) (“This prohibition by us against others than members of the Bar of the State of Arkansas from engaging in the practice of law is not for the protection of the lawyer against lay competition but is for the protection of the public.”); Gardner, 48 N.W.2d at 794 (“purpose is to protect the public from the intolerable evils which are brought upon people by those who assume to practice law without having the proper qualifications”); Cape May County Bar Ass'n v. Ludlam, 211 A.2d 780, 782 (N.J. 1965) (purpose behind prohibiting the unauthorized practice of law is to protect the public against incompetent legal work); People v. Alfani, 125 N.E. 671, 673 (N.Y. 1919) (purpose is “to protect the public from ignorance, inexperience, and unscrupulousness”); State v. Buyers Serv. Co., 357 S.E.2d 15, 19 (S.C. 1987) (purpose is to “protect the public from receiving improper legal advice”).

[36] See Witkin, supra, note 19.

[37] Roger B. Myerson, Game Theory: Analysis of Conflict 1 (1991).

[38] Shaun P. Hargeaves Heap and Yanis Varoufakis, Game Theory: A Critical Introduction 81-82, 168-170 (1995).

[39] Orley Ashenfelter, David E. Bloom, and Gordon B. Dahl, Lawyers as Agents of the Devil in a Prisoner’s Dilemma Game, 10 J. Empirical Legal Stud. 399 (2013) (using empirical analysis to show that these prisoner’s dilemma dynamics do, in fact, induce competitive behavior in the legal field).

[40] Hargeaves Heap and Varoufakis, supra note 38, at 170-174.

[41] Roger E. Schechter, Changing Law Schools to Make Less Nasty Lawyers, 10 Geo. J. Legal Ethics 367, 380 (1997) (“Unlike the “litigation explosion”--where there is a debate over whether the problem exists at all--there does not seem to be much written argument claiming that the civility crisis is being exaggerated.”); see also Mary Ann Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society 5 (1994) (citing how conduct once not tolerated is now widely practiced); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession 1 (1993) (arguing that “the profession now stands in danger of losing its soul”); Sol M. Linowitz, The Betrayed Profession: Lawyering at the End of the Twentieth Century (1994) (blaming the profession's decline, in part, on a desire to seek high salaries); Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. Rev. 1229 (1995) (recommending a business paradigm to replace the professionalism paradigm in legal ethics).

[42] Schechter, supra note 41, at 380 (“While small-town lawyers in remote and bucolic corners of the country may continue to treat each other with some degree of professional courtesy, that there is a problem in most of the more populous places where law is practiced seems undeniable.”); Joseph Guy Rollins, The Way We Were Fifty Years Ago, 33-OCT Hous. Law. 29, 34 (1995) (“My first eleven years of practice were in a small town, and I remember with pleasure and nostalgia the civility and pleasant relationship between lawyers, judges, and court personnel. Even in Houston courtrooms in the late 1950’s there was almost the same small town friendliness. It is a shame that this has been lost.”).

[43] Roy B. Flemming, If You Pay the Piper, Do You Call the Tune? Public Defenders in America's Criminal Courts, 14 Law & Soc. Inquiry 393, 397-400 (1989).

[44] John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in A New Model of Lawyering, 64 Ohio St. L.J. 1315, 1380-81 (2003) (“Moreover, membership in local CL groups can help practitioners maintain reputations for acting cooperatively.”).

[45] David A. Lax and James K. Sebenius, The Manager as Negotiator 38-43, 154 (1986).

[46] Art Hinshaw & Jess K. Alberts, Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics, 16 Harv. Negot. L. Rev. 95, 112 (2011) (“Pepe found that more than half of his study's respondents believed that it was permissible to “facilitate” a settlement agreement based on the false testimony if they found out about the misstatement after the deposition.  More specifically, more than one-third of the respondents thought it was acceptable to enter into a settlement agreement without disclosing the fact that the deposition testimony was erroneous.”).

[47] Robert Axelrod, The Evolution of Cooperation 12 (1984).

[48] Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo. L.J. 1789, 1829-30 (2000).

[49] Co-resolution was piloted in the Franklin County Domestic Relations Mediation program beginning in June, 2012, handling cases that screened as high-conflict.  In surveys collected from 44 participants, parties rated satisfaction with their own coach at 4.8/5.0 and comfort with the opposing coach at 4.6/5.0.  This indicates that the coaches were able to help their respective parties while maintaining cooperation and civility across the table.  Co-resolution was also piloted in labor relations disputes in School District 36, Surrey, British Columbia (the largest school district in the province).  One co-resolver in that pilot project described co-resolution as advocacy without the typical spin or gamesmanship—the negotiators were able to trust each other and cut to the bottom line.

[50] See Cleveland Bar Assn., 95 Ohio St.3d 91, Cincinnati Bar Assn., 123 Ohio St.3d 107, and Brown, 121 Ohio St.3d 423 (As discussed in the previous section, these cases involved an individual negotiating on behalf of another either against an opposing attorney or party to a pending legal action.  Outside of a contained process of dispute resolution, agreed to by both parties, judicial decision-making through litigation is a possibility and negotiation assistance must be conducted with accurate evaluation of what the court could do—this can only be offered by legal counsel).

[51] Martin A. Frey, Does Adr Offer Second Class Justice?, 36 Tulsa L.J. 727, 758 (2001) (“The parties in a mediated agreement may elect to give up their legal rights in exchange for an outcome that makes personal or business sense. The mediated agreement ends the dispute, establishes certainty as to the rights and duties of the parties, and permits the parties to move forward. At times, the parties have a continuing business relationship that is enhanced by the mediated agreement.”).

[52] Joel Kurtzberg & Jamie Henikoff, Freeing the Parties from the Law: Designing an Interest and Rights Focused Model of Landlord/tenant Mediation, 1997 J. Disp. Resol. 53, 75 (1997) (“The critics act as if mediators are faced with a choice between either ignoring the law completely or imposing it on the parties.  They fail to see that a third option exists, perhaps because so many mediators fail to see this as well. This third mediation approach attempts to “free the parties from the law” by embracing it and enabling the parties to both fully understand it and to decide for themselves whether they accept or reject its underlying principles.”).

[53] Jacqueline Nolan-Haley, Self-Determination in International Mediation: Some Preliminary Reflections, 7 Cardozo J. Conflict Resol. 277 (2006).

[54] Witkin, supra, note 19, at 243-244 (one key dynamic within the co-resolution structure is that each party’s ability to terminate the process keeps the co-resolvers loyal to their assigned party—if one party felt “ganged up on” they could terminate the process for all participants.  Thus, co-resolvers are encouraged to explain the right to walk away to the parties at the outset of the process.).

[55] For a model predicting  settlement values given litigation costs and uncertainty, see John P. Gould, The Economics of Legal Conflicts, 2 J. Legal Stud. 279, 281-86 (1973); Sheila F. Anthony, Antitrust and Intellectual Property Law: From Adversaries to Partners, 28 AIPLA Q.J. 1, 36-37 (2000) (“In such settlements, parties may give up rights that they would otherwise vindicate if litigation costs and risks were not prohibitive.”); Jonathan T. Molot, How Changes in the Legal Profession Reflect Changes in Civil Procedure, 84 Va. L. Rev. 955, 959-60 (1998) (observing that “liberal pleading and discovery under the Federal Rules have altered litigation dynamics by making lawsuits more expensive and inducing settlements based on this expense.”).

[56] Speed Shore Corp. v. Denda, 605 F.2d 469, 473 (9th Cir.1979) (“It is well recognized that settlement agreements are judicially favored as a matter of sound public policy.  Settlement agreements conserve judicial time and limit expensive litigation.”); United States v. McInnes, 556 F.2d 436, 441 (9th Cir.1977) (“[T]he law favors and encourages compromise settlements.... [T]here is an overriding public interest in settling and quieting litigation.”).

[57] See Section I., supra, footnotes 9-15.

[58] Bordone, supra note 34, at 13-14.