Based on my study of lawyers’ actual negotiations, A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation, I have reluctantly concluded that the generally-accepted understanding of negotiation theory is seriously flawed and that we need a better theory.

The current framework relies primarily on two models – positional and interest-based negotiation. This is not only a foundation of negotiation theory, but it is key to theory of lawyering, mediation, collaborative law, dispute system design and other areas of dispute resolution, other disciplines, as well as popular culture.

Certainly some of us are satisfied with the current theory but I think that a significant number of us aren’t satisfied. I suspect that many people in the latter group may not realize that others share their concerns and, in any case, feel stuck with the status quo because we need to work with and teach something.

The Challenge of Changing Generally-Accepted Theory.

I think that it can be helpful to consider Thomas S. Kuhn’s theory of the development of science in his book, The Structure of Scientific Revolutions. He defines “paradigms” (as used in this context) as “elements” in a “constellation of beliefs, values, techniques, and so on shared by the members of a given community” that are “models or examples [that] can replace explicit rules as a basis for the solution of the remaining puzzles of normal science.”

Over time, scientists find “anomalies” (i.e., findings that are not explained by the accepted paradigms and resist solution by “known rules and procedures” ) and develop fixes to work around the problems within the prevailing paradigms. Eventually, anomalies accumulate to the point when innovative scientists develop new theories to resolve persistent problems that cannot be explained adequately by the prevailing paradigm. Thus prevailing paradigms are discarded in favor of newer and better paradigms – the famous “paradigm shift.”

A scientific community does not discard a prevailing paradigm until it generally accepts a new one. During “revolutionary” periods, some scientists adhere to the prevailing paradigm while others shift to the new one. Of course, this process unfolds over time, rival paradigms may emerge that aren’t generally accepted, and there isn’t complete unanimity at any stage. This over-simplifies Kuhn’s theory, which isn’t gospel and may not be fully applicable to our situation, but it may help.

Problems with the Status Quo in Negotiation Theory.

Current negotiation theory is based on models of negotiation which are aggregations of several variables. The two main models which are called by different names and which I generally refer to as “positional” and “interest-based” negotiation.  Although this system of negotiation models has been helpful, it also has significant problems.

In the classic version of the positional model, negotiators exchange offers trying to get the best possible outcome for themselves, assume that one side’s gain is necessarily the other side’s loss, make legal arguments to gain partisan advantage, act tough, and use hard-bargaining tactics to gain advantage over their adversaries.

In the ideal version of the interest-based model, negotiators seek outcomes benefitting both parties, explicitly identify their interests, generate numerous options that might satisfy the parties’ interests, consider how various options might satisfy the parties’ interests, consider various factors (such as objective standards), and seek to build cooperative relationships.

In my article, I review nine negotiation texts commonly used in law schools and find that most of them rely on this two-model structure, with some variations. Further evidence that the two-model structure is the prevailing paradigm is that people in our field freely use terms like positional and interest-based negotiation without definitions because they think that everyone knows what they mean. People have recognized some limitations (or “anomalies”) of this structure, which is why some theorists have proposed variations of the two models or a distinction between models and styles.

H. L. Mencken is frequently quoted as saying, “For every complex problem, there is an answer that is clear, simple, and wrong.”

I think that this is a good description of the prevailing negotiation theory. It may be adequate for simple, short negotiations involving things such as dividing an orange or buying a car. And this two-model framework is particularly seductive for many people because it embodies a morality play with a supposedly good model and a bad model.

But the current structure actually is much less clear and simple than it seems. It turns out that these models are hard to apply to negotiation experience.

This is evident when asking students to perform and analyze simulations as they often get tripped up, typically equating positional negotiation as being tough and interest-based negotiation as being nice. I hear some colleagues talk this way too. I suspect that, after leaving our courses and trainings, most students and practitioners completely ignore these concepts, except for some collaborative lawyers and family mediators.

My study shows that this theoretical structure is seriously deficient in accounting for more complex negotiations, such as in litigation that extends over a substantial period of time and especially when lawyers represent parties.

In my study, I asked lawyers to provide detailed descriptions of the cases they settled most recently and while some cases neatly fit into the models, others did not. The process of trying to fit the cases into the models forced me to try to specify the models precisely and I found that they are incoherent, especially the interest-based model.

Part of the problem is that the prevailing theory assumes that negotiation involves coherent models of highly-correlated variables, but often that isn’t the case. Different negotiators often exhibit different aspects of the models and these may differ for various issues and may change over time.

More fundamentally, I think that the theoretical structure based on negotiation models itself is very problematic. It focuses on the final stage of a negotiation which obviously is important but it omits the critical interactions leading up to the conclusion. As I described in an earlier post, we provide an incomplete and unrealistic understanding if we don’t focus on the entire dispute (or the entire series of interactions in a transactional context).

In Part 2, I use actual negotiations from my study to illustrate these problems.