Against Integrative Bargaining

Professor Russell Korobkin from UCLA gave an interesting talk at the AALS DR Section Works-in-Progress Conference a couple of weeks ago.  His talk, Against Integrative Bargaining, was interesting and certainly caught the attention of everyone at the conference.  His basic thesis was simple: Integrative Bargaining (or problem-solving negotiation or interest based negotiation) is oversold.  Looking at the bargaining paradigm, Korobkin argued (1) that there are few truly integrative deals out there to be had, and (2) that integrative bargaining only impacts the negotiation process when it moves one or both parties’ respective reservation points to create more value to be divided than was already there.  Further, he echoed one of James J. White’s initial criticisms of Getting to Yes, there’s no discussion of the distributive aspect of negotiation.

 

In the interest of full disclosure I am sympathetic to Russ’s critique.  In teaching my negotiation courses, I use other sources to discuss distributive issues in negotiation.  The GTY distributive lesson – use objective criteria – is helpful but patently lacking.  In my mind the best nuts and bolts source on the use of distributive tactics in negotiation is Marty Latz’s book Gain the Edge.  But back to Russ.  I agree w/ him that there are few truly integrative deals out there particularly when lawyers are negotiating, and I think we educators spend too much time giving students the impression that there are more out there than there are.  However, it is a mistake to think that there are none as there clearly are (as my mediation clinic students demonstrate every semester). 

 

I disagree with Russ’s take on what Integrative Bargaining adds to negotiation theory.  The concept of interests may be the most fundamental negotiation/ADR concept and is vital in assisting negotiators understand why they are negotiating.  Somehow we need to figure out the motivation for our negotiation, which is where interests come in.  For what it’s worth, I agree w/ Russ’s writings elsewhere that much of the negotiation process is a discussion geared towards getting the parties to move their respective reservation prices.

 

Despite my disagreements with him, I appreciate Russ’s look at negotiation’s sacred text.  It is deceptively simple and requires continual review to internalize its subtleties.  Thanks for bringing this to the forefront for us.

5 thoughts on “Against Integrative Bargaining”

  1. Art,
    A thought on point 1 : While it might be true (which I am not ready to say it is), what I have found is that the integrative deals take up a disproportionate amount of resources and produce unsatisfactory agreements, if any. So, while they may be infrequent, their impact is disproportionate. Because of this, I dedicate much of my teaching to the importance of assessing when an integrative approach is appropriate, in addition to the how of integrative negotiation.

    On point 2, aside from the fact that that it completely contradicts my experience, I will withhold my comments (especially since I did not hear Russ’s presentation).

    Thanks,
    Sean

    Sean F. Nolon
    Director, Alternative Dispute Resolution Program
    Associate Professor of Law
    Vermont Law School
    http://vermontlaw.edu/x6871.xml

  2. OK, I’m between classes now. Are integrative and distributive bargaining opposites? No more than apples and oranges are opposites. But it does seem to be Korobin’s point (based on your post today) that these bargaining modes take an opposite view of the question “is there opportunity for the parties to move their reservation points in a way that creates additional value?” Integrative bargaining treats that as a reasonable possibility while distributive treats it as an unlikelihood. The integrative approach does not guarantee “pie-enlargement” and the distributive approach does not foreclose it. I see it as merely exploring the possibility of “pie-enlargement” versus focusing on the pie at hand. I am a newbie at this: I can spell “ADR” but that’s what it looks like to me in my relative ignorance.

    Can’t one use the stick in integrative bargaining and the carrot in distributive? Of course. I have no formal experience in either bargaining; just the experiences of an average person, but in every situation there may be opportunities to use both. Perhaps I should have used a belt-and-suspenders metaphor instead of a carrot-and-stick one. Let me be clearer (I hope): integrative and distributive methods represent “tool-kits”; collections of methods and techniques usable in the successful completion of bargaining. One should bring all their tools to every project; a screwdriver might be useful today, a mallet tomorrow.

    Am I being . . . less opaque? Mea culpa.

  3. Interesting comments Sean.

    I agree that negotiators need to be flexible. Do you believe that distributive and integrative bargaining are opposites? Also, can’t one use the stick while being an integrative bargainer and dangle the carrot if in a distributive mode?

  4. Questions:

    If one presumes that integrative bargaining is futile and adopts a distributive approach, then aren’t integrative solutions foreclosed? (Except for the off-chance of an accidental discovery of them).

    On the other hand, if bargainers begin with an integrative approach and fail to move reservation points; does not the distributive approach remain viable?

    Certainly no one approach WORKS every time; just as that not every dispute can be negotiated. For the above reasons, shouldn’t one always begin with an integrative approach unless or until it becomes clear that there is no additional value obtainable? Shouldn’t one come to any negotiation armed with both a carrot and a stick?

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