Foundations of Dispute Resolution

Volume I

Carrie Menkel-Meadow, Carrie Menkel-Meadow

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351936071
• Edition: 1
• Topic: Law
• Subtopic: Civil Procedure
• Index: Law

This volume brings together leading research articles in to the theory, research findings and applications of modern dispute resolution. The articles relate to a wide variety of settings and cover the primary processes of negotiation, mediation and arbitration, as well as exploring combinations and hybridization of those processes. Also included are articles on the search for 'value-added' or 'pie-expanding' creative solutions; the choosing of strategies, based on game theory, economics and social and cognitive psychology; how foundational theories have been altered or modified, depending on contexts, and numbers of parties and issues; and what issues are raised by the 'privatization of justice'. The articles span both the 'science' and 'art' of dispute resolution, consider the relationship of peace to justice and include both empirical (descriptive) and normative (prescriptive) assessments of how these processes of dispute resolution function.

Part I

Foundations of Negotiation Theory and Practice

[1]

TOWARD ANOTHER VIEW OF LEGAL NEGOTIATION: THE STRUCTURE OF PROBLEM SOLVING

Carrie Menkel-Meadow*

* Acting Professor of Law, University of California, Los Angeles; A.B., Barnard College; J.D., University of Pennsylvania.

So many of my colleagues and friends have read and commented on earlier drafts of this Article that it is difficult to give credit where credit is due. On the other hand, the spirit with which my friends tried to solve the problems I encountered working on this piece amply demonstrates the advantages of the collaborative processes described in the text. I therefore must express my appreciation to those who entered into my problem-solving world and made some contribution to the final product or to my thinking: Richard Abel, Paul Bergman, David Binder, Victoria Bonebak-ker, Paul Brest, Carole Goldberg-Ambrose, Daniel Lowenstein, William McGovern, Robert Meadow, Patrick Patterson, Gary Schwartz, Murray Schwartz, Mark Spiegel and Stephen Yeazell. In addition, I must give special thanks to my Dean and friend, Susan Westerberg Prager, and to my colleague and husband, Robert Meadow, without whose support I would be solving no problems at all.

And finally, I would like to express my gratitude to my editors Janet Kobrin and Sharon Nolfi. I think I can say that never has a law review editorial process been so pleasurable and supportive as we “negotiated” the words that follow.

“To sue is human, to settle divine”

—Sign in U.S. Magistrate’s Office

TABLE OF CONTENTS

	INTRODUCTION
I.	ASSUMPTIONS OF THE TRADITIONAL MODEL: ADVERSARIAL NEGOTIATION
	A.	The Structure and Process of Adversarial Negotiation
		1.	The Structure of Adversarial Negotiation: Linear Concessions on the Road to Compromise
		2.	The Process of Adversarial Negotiation: Unproductive Competition
	B.	The Underlying Assumptions of the Adversarial Model
		1.	The Zero-Sum Game: Assumptions of Win/Lose with Equally Valued Limited Resources
		2.	Negotiating in the Shadow of the Court: Assumptions of Polarized Results and Limited Solutions
	C.	Consequences of the Adversarial Assumptions: The Limits of Linearity
II.	TOWARD A MODEL OF PROBLEM SOLVING NEGOTIATION: A THEORY OF NEEDS
	A.	The Underlying Principles of Problem Solving: Meeting Varied and Complementary Needs
	B.	The Structure of Problem Solving
		1.	Identifying the Parties’ Underlying Needs and Objectives
		2.	Creating Solutions
			a. Meeting the Parties’ Needs
			b. Expanding the Resources Available
			c. Just or Fair Solutions
	C.	The Process of Problem-Solving Negotiation
		1.	Planning
		2.	Execution
III.	LIMITS OF A PROBLEM-SOLVING MODEL OF NEGOTIATION: NEGOTIATING IN A COMPETITIVE WORLD
	A.	Limits of Inequality
		1.	Wealth
		2.	Power
	B.	Limits of Ideology and Personality
		1.	Definitive Rulings and Punishment
		2.	Negotiator Personality
	C.	The Limits of a Needs Analysis
	CONCLUSION

INTRODUCTION

When people negotiate they engage in a particular kind of social behavior; they seek to do together what they cannot do alone. Those who negotiate are sometimes principals attempting to solve their own problems, or, more likely in legal negotiation, they are agents acting for clients, within the bounds of the law.

When lawyers¹ write about this frequent social activity they join commentators from other disciplines² in emphasizing an adversarial³ or zero-sum game⁴ approach to negotiation. In their view, what one party gains the other must lose. Resources are limited and must be divided. Information about one’s real preferences must be jealously guarded. If the negotiation fails, the court will declare one party a winner, awarding money or an injunction. Successful negotiations represent a compromise of each party’s position on an ordinal scale of numerical (usually monetary) values. This Article suggests that writers and negotiators who take such an adversarial approach limit themselves unnecessarily because they have not fully examined their assumptions.

Recently, several analysts⁵ have suggested that another approach to negotiation, an approach I will call problem-solving, might better accomplish the purposes of negotiation. This problem-solving model seeks to demonstrate how negotiators, on behalf of litigators or planners,⁶ can more effectively accomplish their goals by focusing on the parties’ actual objectives and creatively attempting to satisfy the needs of both parties, rather than by focusing exclusively on the assumed objectives of maximizing individual gain. Unfortunately, some of this new literature tends to confuse collaborative negotiation styles or strategies⁷ with what must be antecedent to any negotiation behavior—a conception of negotiation goals.⁸ These recent analysts have also failed to fully explore their own assumptions concerning the objectives in negotiation.⁹ This Article explores those assumptions and elaborates on a framework for problem-solving negotiation that responds to the limitations of the adversarial model

In order to contrast the adversarial model with the problem-solving model several key concepts must be defined and criteria for evaluation of the models made explicit. The negotiation models described here may seem unduly polarized, yet they represent the polarities of approach exemplified both by the conceptions of negotiation we construct as well as by the strategies and behaviors we choose.¹⁰ The models described here are based on orientations to negotiation, that is, how we approach our purpose in negotiation, rather than on the particular strategies or tactics we choose. It must be noted, however, that the tactics and strategies we choose may well be affected by our conception of negotiation.¹¹ A A general model demonstrates the relationship of negotiation orientations to negotiation results:

The orientation (adversarial or problem solving) leads to a mind-set about what can be achieved (maximizing individual gain or solving the parties’ problem by satisfying their underlying needs) which in turn affects the behavior chosen (competitive or solution searching) which in turn affects the solutions arrived at (narrow compromises or creative solutions).

The primary, but not exclusive, criterion for evaluation of a negotiation model is the quality of the solution produced.¹² This includes the extent to which the process utilized contributes to or hinders the search for “quality” solutions.

In elaborating on approaches to negotiation I shall consider the following criteria of evaluation:

1. Does the solution reflect the client’s total set of “real” needs,¹³ goals and objectives, in both the short and the long term?

2. Does the solution reflect the other party’s full set of “real” needs, goals and objectives, in both the short and long term?¹⁴

3. Does the solution promote the relationship the client desires with the other party?

4. Have the parties explored all the possible solutions that might either make each better off or one party better off with no adverse consequences to the other party?¹⁵

5. Has the solution been achieved at the lowest possible transaction costs relative to the desirability of the result?¹⁶

6. Is the solution achievable, or has it only raised more problems that need to be solved? Are the parties committed to the solution so it can be enforced without regret?

7. Has the solution been achieved in a manner congruent with the client’s desire to participate in and affect the negotiation?¹⁷

8. Is the solution “fair” or “just”? Have the parties considered the legitimacy of each other’s claims and made any adjustments they feel are humanely or morally indicated?¹⁸

Criteria one through seven are all based on a utilitarian justification of negotiation. By satisfying these criteria, a negotiation may produce results which are more satisfactory to the parties, thus enhancing commitment to and enforcement of the agreement.¹⁹ The final criterion is applicable to those negotiators who wish to consider the effects of their solution on the other party from a humanitarian or ethical perspective.²⁰

This Article will first explore the structure, process and assumptions of traditional adversarial negotiations.²¹ Second, it will describe, with examples, the problem-solving model of negotiation.²² Finally, it will discuss the limits of the problem-solving conception of negotiation.²³

In writing about legal negotiation it is difficult to separate the descriptive from the prescriptive. Part II is, in many ways, a description not only of the negotiation literature, but of the pedagogy of legal clinicians who teach negotiation. Part III, which presents the model for problem solving, is largely prescriptive for legal clinicians; yet I think it also describes how some lawyers conceive of negotiation at the present time.²⁴ The impetus for this Article came from many years of watching teachers and students in clinical programs struggle to understand negotiation, primarily through strategic and tactical considerations. What we lack are sufficiently clear overarching theories or frameworks which would enable us to understand better the complexity of legal negotiations.²⁵ There is a danger of some bias when conclusions about legal negotiation are drawn from the clinical dat...