In a recent post, I described the structure of Missouri’s upcoming symposium entitled “Moving Negotiation Theory from the Tower of Babel: Toward a World of Mutual Understanding,” which will take place on October 7, 2016.
In this post, I tell why it came about and what I hope it will accomplish.
Missouri’s Center for the Study of Dispute Resolution holds an annual symposium and members of the Center rotate the opportunity to organize it each year. This year, it was my turn again. Since I have been teaching negotiation and writing about it lately, it made sense to focus on negotiation.
Although I have been in the DR field for quite a while, I started teaching negotiation only in 2012. I was generally familiar with the subject and, for years, I had included units on negotiation in other courses. But I had never devoted a whole course to it.
In 2011, I was fortunate to participate in the Rethinking Negotiation Teaching conference in China. The organizers of the RNT conferences – including Chris Honeyman, Jim Coben, Sharon Press and their cronies – designed them to stimulate cross-fertilization of ideas by a very diverse group of participants who all committed to write chapters for a series of books.
This was a great opportunity for me to co-author a chapter, which help me figure out what the heck to include in my negotiation course. Our chapter began:
What’s a negotiation instructor to do? So much to teach, and so little time. Most instructors can’t shoehorn into a traditional negotiation course all the things they would like to do. Participants in the Rethinking Negotiation Teaching (RNT) conferences have identified many additional subjects and instructional methods, which increases opportunities to provide the best possible instruction but also increases the challenges in doing so.
That chapter (later republished in Hamline’s Journal of Public Law and Policy) surveyed ideas suggested in the three RNT conferences as well as the predecessor efforts published in the Marquette Law Review, Negotiation Journal, and the Negotiator’s Fieldbook.
My course was also informed by my research on collaborative law, which is part of a general phenomenon I call “lawyering with planned early negotiation.” I also thought about Marc Galanter’s concept of “litigotiation,” which he argues is “the strategic pursuit of a settlement through mobilizing the court process.”
In an article describing my plans for my negotiation course, I wrote:
Just as law school generally presents a distorted image of lawyers’ work by focusing disproportionately on litigation (especially appellate litigation), law school negotiation courses often convey a distorted image of legal negotiation by focusing disproportionately on the final stages of negotiation. In addition, negotiation courses typically focus only on the dramatic positional and interest-based approaches to negotiation, with little or no discussion of a less romantic and perhaps more common approach to negotiation in ordinary legal practice.
Growing out of Herbert Kritzer’s book, Let’s Make a Deal: Understanding the Negotiation Process in Ordinary Litigation, and other research, I described a third model, which I called “ordinary legal negotiation,” in which lawyers try to reach agreement starting with legal norms rather than parties’ maximalist goals or their respective interests.
Like an astronomer seeking to find evidence of a tenth planet in our solar system, I set out to document cases of “ordinary legal negotiation.” I interviewed lawyers about the cases they recently settled, starting from their first interaction with their clients in the case.
I did find actual cases of ordinary legal negotiation but, more importantly, I documented cases showing how the system of theoretical negotiation models doesn’t work very well. Many cases do not fit neatly into any model. Analyzing the “solar system of negotiation” primarily by reference to planets (or negotiation models) distracts attention from the operation of the system as a whole. That’s what led me to recommend development of an alternative theoretical framework that would be easy to use and substitute for the traditional system of negotiation models.
This is easier said than done. For Chris Honeyman’s and Andrea Schneider’s next tome, I wrote a chapter entitled “Taming Jungle of Negotiation Theory.” I surveyed theoretical literature about negotiation from various disciplines to identify the range of issues they address. This chapter demonstrates that, although there is some overlap between the texts, there is nothing approaching a consensus about the structure and content of negotiation theory or even a definition of negotiation.
So, after five years of studying and teaching negotiation, I am still having a hard time wrapping my head around the subject. It’s no wonder that most people in our field do too.
In our symposium, speakers and audience members will learn from each other and hopefully lead to clearer and more realistic understandings of negotiation that will be valuable for scholars, instructors, students, practitioners, and even people negotiating in their everyday lives.
