Lawyer Negotiations: Theories and Realities—What We Learn From Mediation
| Date | 01 May 1993 |
| Published date | 01 May 1993 |
| DOI | http://doi.org/10.1111/j.1468-2230.1993.tb02678.x |
May
19931
Lawyer Negotiations: Theories
and
Realities
Lawyer Negotiations
:
Theories and Realities
-
What We Learn From Mediation
Carrie Menkel-Meadow
*
Introduction
Interest in the science and ah of negotiation has grown exponentially in the last
ten years.’
A
wide variety of disciplines, including law, political science, psy-
chology, economics, sociology and game theory have been used to try to develop
theoretical and empirical understandings of the negotiation process in a multitude
of settings. Efforts to understand and teach what lawyers actually do have facilitated
the study and teaching of negotiation.* The movement in the United States, the
United Kingdom3 and elsewhere to foster ‘alternatives to litigati~n’~ as a way of
resolving disputes has also increased the focus on the primary dispute resolution
process of bilateral negotiation, particularly when conducted by party representatives
(there still appears to be less focus on direct party transactional negotiations). Despite
the vast outpouring of literature, theories about negotiation remain dichotomised
or at best trichotomised into models of distributive (competitive) bargaining,
integrative (problem-solving) bargaining or principled (or cooperative) bargaining.
These efforts at theory building often conflate analytic properties (the type of
substantive problem, the numbers of parties to the dispute, the voluntariness of the
negotiation process, the ‘stakes,’ etc5) and behavioural or stylistic advice (coopera-
tion, information sharing)
-
what at least one theoretician separates into the ‘science’
and the ‘art’ of negotiation.6 Some negotiation analysts are concerned with specify-
*UCLA School of Law.
I
thank the participants of the New York Clinical Theory Workshop for comments on this paper and
I
thank Susan Gillig for her continuing support and co-teaching efforts in connection with the work described
herein.
See eg H. Peyton Young,
Negotiation
Analysis
(Ann Arbor: University of Michigan Press, 1991);
J. William Breslin and Jeffrey
Z.
Rubin (eds),
Negotiation Theory
and
Practice
(Cambridge, Mass:
Harvard Program on Negotiation, 1991); David
Lax
and James
K.
Sebenius,
Ihe Manager
as
Negotiator:
Bargaining
for
Cooperation
and
Competitive Gain
(New York: Free Press, 1986); Roger Fisher and
William Ury,
Getting to Yes: Negotiating Agreement Without Giving
In
(New York: Penguin, 2nd
ed, 1992); Howard Raiffa,
The
Art
and
Science ofNegotiation
(Cambridge, Mass: Harvard-Belknap
Press, 1982);
see
sources collected in Carrie Menkel-Meadow, ‘Legal Negotiation: Strategies in Search
of a Theory’ (1983) Am B F Res
J
905, and Carrie Menkel-Meadow, ‘Toward Another View of Legal
Negotiation: The Structure of Problem-Solving’ (1984) 31 UCLA
L
Rev 754.
See
eg Gerald Williams,
Legal Negotiation
and
Settlement
(St Paul, Minn: West Publishing Co, 1983);
Donald Gifford,
Legal
Negotiation
(St Paul, Minn: West Publishing Co, 1989).
See eg Simon Roberts, ‘Mediation in the Lawyers’ Embrace’ (1992)
55
MLR 258.
See eg Frank Sander, Steven Goldberg and Nancy Rogers,
Dispute Resolution
(Boston, Mass: Little
Brown
&
Co, 2nd ed, 1992); Leonard Riskin and James Westbrook,
Dispute Resolution andhwyers
(St Paul, Minn: West Publishing Co, 1987).
For a fuller description of contextual factors and analytic properties that may affect negotiation choices,
see Carrie Menkel-Meadow, ‘Legal Negotiation: A Study
of
Strategies in Search of a Theory’ (1983)
Am B
F
Res
J
905, 927-8.
See Raiffa,
id
n 1.
1
2
3
4
5
6
@
The Modern Law Review Limited 1993 (MLR 56:3, May). Published by Blackwell
Publishers, 108 Cowley Road, Oxford OX4 IJF and 238 Main Street, Cambridge,
MA 02142, USA.
0
The
Modem Law Review Limited
1993
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[Vol.
56
lhe
Modem
Law
Review
ing the conditions under which particular models or theories work best.’ Others
are concerned with evaluation of negotiation as a process on dimensions of justice,
fairness and distributive equity,8 as compared to other processes in our legal
system.
In this paper
I
will review the basic elements of these alternative theories, efforts
to understand when they may analytically be applied and recent criticisms of these
models, particularly through empirical studies of lawyer negotiation practices that
have implicitly, if not explicitly, challenged the theoretical models. Next
I
will explore
what lawyers think they are doing when they negotiate and review what a variety
of recent studies of actual lawyer negotiating behaviour reveals about the negotiation
process.
Drawing from my own work in mediating and studying lawyer negotiation
processes in California courts,
I
will report on differences
in
conception and execution
of negotiation processes, which may be especially dependent on mandatory versus
voluntary settings. Finally,
I
will report on some recent work that has begun to
look at race, class and gender issues as they affect the dispute resolution and
transactional negotiation process. Given the private nature of most lawyer negotia-
tions, questions can be raised about the efficacy of lawyer negotiation and what
efforts can/should be made to educate and/or regulate lawyer behaviour (from both
micro-ethical and macro-justice perspectives).
Using the combinations of rigorous social scientific studies of negotiation and
mediation behaviour, with teaching about negotiation and mediation, we can seek
to narrow the gap between prescriptive theoretical models and the description of
what actually occurs in lawyer negotiations.
In this paper
I
report on some preliminary data of both party (litigants without
lawyers) and lawyer negotiation behaviour, taken from observations in real cases
being mediated by students in a mediation clinic. As a preliminary study, this report
should stimulate our thinking on both processual and substantive grounds. With
the focus on mediation skills, students observe the effects of particular behavioural
choices made in negotiation, not by themselves, but by others, and thus may be
less defensive in analysing and locating behavioural problems. Thus, a focus on
one set of skills or process produces
learning
about another
-
doing mediation teaches
us to be better negotiators at the micro behavioural level, just as judging teaches
us
about litigating. At the same time, at the macro level, aggregating the individual
experiences of students observing and participating in negotiations allows them as
learners and us as researchers to reconceptualise the accuracy and explanatory power
of
the models of lawyering we teach.
At UCLA we have focused on the generation and elaboration of models of
lawyering in trial adv~cacy,~ interviewing and counselling,
lo
fact development’’
7 See eg Gary Lowenthal, ‘A General Theory of Negotiation Process, Strategy and Behavior’ (1982)
3
1
U
Kansas L Rev 69; Donald Gifford,
Legal Negotiations: 7heory and Applications
(St Paul, Minn,
1989);
id,
‘A Context Based Theory of Strategy Selection in
Legal
Negotiation’ (1985)
46
Ohio St
LJ
41.
See eg Robert Condlin, ‘Cases on Both Sides: Patterns
of
Argument in Legal Dispute Negotiation’
(1985)
44
Maryland L Rev 65; David Luban, ‘The Quality of Justice’ (1989) 66
U
Denver L Rev 381;
Owen Fiss, ‘Against Settlement’ (1984) 93 Yale
LI
1073.
See Bergman, ‘Trial Advocacy in a Nutshell’; Moore, ‘Inferential Streams’ (1988) 34 UCLA L Rev.
See
Binder and Price,
Legal Interviewing and Counselling
(1977); Binder, Bergman and Price, ‘Lawyers
as Counsellors: A Client-Centred Approach’ (St Paul, Minn: West Publishing Co, 1991).
Binder and Bergman,
Fact Investigation
(St Paul, Minn: West Publishing Co, 1987).
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