From EFOI Debra Berman:
In our zeal to teach integrative bargaining, many of us tend to use negotiation role-plays that have multiple items to creatively bargain about. But is that actually doing a disservice to our students? While I certainly believe it is beneficial to teach our students to think outside of the box and encourage integrative problem solving, in the “real-world,” often times money is the primary topic to be negotiated. Are we creating false expectations amongst our students?
I bring this up now because 400 students from all over the country just completed our Inter-School Negotiation Practicum which was a month long negotiation based on a pending law suit. The case documents can be found here.
First, I should start by pointing out that almost all students reported enjoying the exercise and found it to be particularly beneficial to negotiate against someone they didn’t know over a long period of time.
However, a handful of responses I received from the post-negotiation questionnaire, along with an observation from a professor that required her students to participate, indicate that some students were frustrated by the lack of creative options. Interestingly, however, there were in fact a number of outside-the-box options that students came up with. Yet they expected even more. Here are several of the comments I am referring to:
I wish the negotiation allowed for a little bit more creativity.
Having more than one thing to negotiate (or two if you include the NDA) would have made this more interesting.
I expected there to be a multitude of contentious issues up for debate. However, there seemed to really be only one: financial compensation. When there are more things at stake, you get the opportunity to leverage things against the other party and make more concessions and compromises. I found this to be less lively.
Sometimes I hear similar comments in my mediation class about one simulation in particular. I make sure that one of our five full-class, recorded mediations is essentially a money-only negotiation. Some students report that they feel that simulation is more challenging since there are fewer creative options.
So my question to you is this: Are our students’ expectations realistic? Are they going to be blindsided when they enter legal practice? Should we ensure that they are exposed to a range of different (yet realistic) simulations that don’t necessarily come along with the more sexy, creative options that we tend to see in classes and competitions? I welcome your thoughts.
Assistant Professor of Clinical Studies
Director, Frank Evans Center for Conflict Resolution
South Texas College of Law Houston
4 thoughts on “Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality?”
I think Professor Berman is on to something here and I like her approach of ensuring at least one mediation per course is only about price. We need to ensure our students have a sense of what mediation looks like in “real life.” I’m writing from Canada and one thing I’ve noticed is that mediations in the United States are even more likely to be done in a shuttle style. This is also something we don’t teach our students; some lawyers, especially those in California, simply won’t participate in joint session mediations.
You raise some excellent questions that we need to address. Good food for thought
The simulations in our first year Dispute Resolution and Professional Responsibility program at the University of Ottawa include distributive and integrative items. After all, in practice many negotiations have some distributive items, and students will need strategies and skills to work with lawyers and clients whose default mode is distributive. Personally I like the Gerald Williams article that describes effective and ineffective aggressive and cooperative negotiations as a companion piece to teaching the spectrum of negotiation approaches.
I find this to a really interesting point. As a current 3L who has participated in a few different negotiation and mediation competitions, I felt there were typically so many issues provided in the facts that it was not even realistic to come up with a fully fleshed out settlement in the time allotted. This typically resulted in drastically different feedback from judges and opposing parties because it was incredibly hard to determine what was the most important thing to focus on and opinions differed. I recently got feedback that was very much along the same line of thinking detailed here, that it is pretty much always about the money. Frankly, I did not even think about that until I had a professional point it out to me. While exercises which leave less room for creative solutions may be less enticing for participants, I definitely think that they could help bridge the gap between student simulations and real world dispute resolution.