After thinking about Russell Korobkin’s thought provoking critique of Integrative Bargaining (Sean, thanks for the comments), my mind wandered back to an interesting exchange b/w my co-blogger Andrea and Russ. When Russ took the podium, he said he was ready to duck to avoid the rotten fruit and vegetables soon to be headed his way, and Andrea was warming up her arm. At first it seemed like they had distinctly differing takes on what constitutes distributive bargaining. After some back and forth it was clear to me that Russ thinks Integrative Bargaining is very narrow and equates it to the opposite to distributive bargaining. Andrea, on the other hand, sees the term as including the distributive aspects of negotiation. My favorite part of the exchange was when the two of them realized their differences and Russ said something along the lines of “if that’s integrative bargaining, then there is no room for any other theories.” Watching this discussion unfold, it’s clear to me that we still have some basic definitional problems in negotiation theory that still have to be resolved. The sooner we come to some mutual understanding on language, the better.
It’s not surprising that this would occur. The Integrative Bargaining literature fails to include much discussion of the distributive aspects of negotiation, which causes many of its proponents to see the distributive portion of the negotiation as too competitive or too unseemly. Rather than try to understand it, some of us law profs equate it with (gasp) the hard bargaining that we despise. As a result, some of us either avoid the topic or gloss over it. Those of us who fall into this camp truly are doing our students a disservice. Remember every negotiation has a distributive side to it, and it deserves as much attention as everything that leads up to it.
In agreement with Prof. Schneider; distributive bargaining is no less important than integrative, it may just be more “natural”. Creativity is essential to integrative bargaining, but creativity itself is difficult to learn which is why an entire genre of literature is devoted to methods for “becoming creative”. Worse: in stressful situations like a difficult negotiation it is harder to be creative than to simply divide up the pie.
No doubt there are important things to learn about distributive bargaining, but the same is true of integrative bargaining with the added consideration that creative bargaining, being harder to learn, requires greater teaching emphasis. In elementary school our teachers spent far more time teaching division than multiplication, not because division is more important but because it’s harder to get right.
In one of our readings in the context of mediation (Coleman & Deutsch; Some Guidelines For Developing A Creative Approach To Conflict) the authors discussed the need for appropriately phased “open” and “closed” thinking; in which “open” thinking was characterized by divergent, creative, open, innovative thought. “Closed” was characterized as convergent, decisive; moving toward closure.
In my notes, I associated “open” thinking with an integrative approach and “closed” thinking with distributive. Contrary to the potentially negative connotation of “closed” thinking, I believe the authors were emphasizing that even the most wide-ranging, brain-stormy, integrative bargaining must eventually move to closure by distributive means: having enlarged the pie does not relieve one of the need to eventually decide how to cut it up.
I see a general flow to bargaining: disputes or potential bargains may begin as vaguely or incompletely understood even by the parties. By instinct, training, or third-party intervention, parties begin by defining their dispute and exploring their options. This is an integrative phase. At some point the parties and/or other participants conclude that they fully understand their interests, options, etc. and move to refine their options and complete their bargain. This is a distributive phase. It is possible that events may cause the parties to go back to an integrative phase when new options are discovered or the distributive result is unacceptable (for examples) but eventually bargaining either fails or the parties end up in a distributive phase and “divide the pie”.
In my mind, the only difference between “integrative” bargaining and “distributive” bargaining is: where in the process do the parties begin? If they are satisfied that they understand their options sufficiently, parties might skip integrative efforts and move directly to a distributive completion of their bargain. If they decide they need to explore their possibilities further, they may elect to start earlier in the cycle, somewhere in the integrative phase.
If I might belabor the pie analogy one more time, bargaining is like cooking a pie. You might assemble the pie from scratch (integrative phase) or buy a complete–and frozen–pie. Either way, you still have to put it in the oven (distributive phase); cooking it neither too fast nor too long. How you make your pie depends on your interests and how urgent the need is for whatever pie you like. Pizza is a pie, right?
With regard to a need to refine terms, the cooking metaphor applies: are both methods of cooking a pie (buying frozen or assembling one, baking either way) acts equivalent enough to refer to with the same word “cooking”? Should the word “bargaining” apply to both the processes of discovering or expanding and the processes of dividing up opportunities? How granular need this terminology get? Discovery, analysis, evaluation, blending of options and selection/rejection of options . . . I’m sure there’s stuff I’m missing. Perhaps the process is so inherently complex and comingled that all terminology is unworkably nit-picky or unhappily vague.
Happy Thanksgiving to All.
The striking thing for me from Russell’s talk was how much overlap there was in terms of approaches to negotiation. No negotiation professor is arguing that we don’t need to teach BATNA or goals or criteria or good persuasive talking. Similarly, Russell and I both agreed that the integrative skills–creativity, listening, empathy–are often more challenging for lawyers to learn and may need more classtime. Nancy Welsh and I are having some fun writing a longer response to Russell but, in the meantime, suffice it to say that there is far more overlap in what we consider effective negotiation teaching than not.