Yesterday DR field titan Carrie Menkel-Meadow (UC-Irvine) contributed to this conversation on the listserv. Cross posting it here for posterity. Enjoy.
If I may be so bold as to say, as one of the “mothers” of integrative bargaining (actually problem solving in my lexicon), anyone who reads my texts (with Andrea Schneider, Lela Love, Jean Sternlight and now Michael Moffitt) or my original 1983, 1984 or later articles (Neg. J.) knows, we teach not just both (but for me 4 different) conceptual models of negotiation (Lax & Sebenius “creating and claiming” is the 3rd—you will have to wait for my next book coming out next year to see the published version of what the 4th is (hint—read a lot of my other work on mediation, deliberative democracy and process pluralism).
As my intellectual mentor, Howard Raiffa taught me, before we negotiate anything we have to analyze the problem, situation (the “science” of the problem, for me the social science of negotiation)—what is at stake (# of issues, # of parties, res being negotiated (thing)-scarce or not), what can the parties do with what they are trying to achieve, what is the context (see my 1983 article in A.B.F.Res. J. for contextual factors that I fold into all teaching of negotiation.—Only after analysis (cognitive parts of negotiation) do we get to the behavioral choices (the “art”) that both in theory and real-life may draw from a wide range of behavioral repertoires that we teach. Good negotiators have to analyze, choose (decision making), act, assess, adapt, reframe and yes be smart enough (and research deeply and interdisciplinarily) to CREATE different kinds of solutions (some based in law—lawyers are legal negotiators, and sometimes drawing from other fields or different materiel or different time frames or getting different parties or experts involved). I have, since I started teaching in the 1970s, always used sequenced over time role plays and simulations with clients (real people not just other students in the class and sometimes me), so I can see first hand how students are conceptualizing problems and offering ideas about both process and outcome and getting feedback from those “clients” about what has worked or not. I suspect that I am the only senior negotiation professor who still does individual feedback for every student from in-time observed negotiations (actually turned out pretty well on all Zoom this term).
There are many kinds of negotiations and I want my students to be analytically rigorous to do what is the best for their clients and those affected by their clients (the moral, ethical and yes, political part of negotiation) and to make things better, not worse (lemonade out of lemons where possible, not always) when they work and represent people or groups. They need to know the differences of many factors in different kinds of negotiations. (I have ranged in my career from poverty law small claims, domestic relations evictions, welfare rights, workers comp, civil rights and discrimination, health care, employment, labor, major class actions, constitutional cases, mass torts, and international major situations (peace talks) so believe me I know that “one size does not fit all.” But if I could not instill some hope in every student to look for how to be creative and “helpful” to any situation and only had to teach distributive negotiation, even for economic efficiency or client desire to “win,” I wouldn’t be doing this (for 45 years now!!).
Roger Fisher and I often used to debate JJ White in many venues (CPR, AALS, other professional CLE) about when and how many integrative or distributive situations there were. I enjoyed those interchanges (a contested empirical question) but as anyone who knows me will see when they read this—binary, debate thinking is not really my cuppa tea. The world is too complex and problematic (especially now) for on/off or vs. thinking—so I teach many “models” or intellectual and discipline based frameworks of negotiation and then focus on what seems appropriate to the complexity of different situations. My courses have always drawn from dispute/litigation AND transactional settings and increasingly are not just dyadic situations but more complex multi-party situations drawn from many subject matters.
End of sermon for now (just taught my penultimate Negotiation class of the semester—I get to do some version of this sermon as final class on Wed.). For me the promise and hope of integrative, “problem solving” negotiation teaching (making things better where possible) is why I do this work– not to produce instrumentally better “competitors”—the rest of law school does plenty of that.
Give thanks for what you can in these times and be well.
(Initial disclosure: I am not a lawyer and I teach negotiations in the context of public – planning, environmental – disputes. The culture of my discipline seems to me different than law.)
The short answer to Debra Berman’s question is “YES!” – many of us are overemphasizing integrative negotiations, and it does not help that much research focuses on how to foster it, with less attention on when. Perhaps this is driven by the fact that the most widespread mental model of negotiation is distributive, so we may need to devote more time to the less familiar approach.
Carrie Menkel-Meadow’s is part of what should be a long answer to Debra Berman’s question, needing to cover a goodly portion of negotiation theory (and practice). I’ll add a few considerations which will still leave the answer incomplete.
I have been lucky to have learned negotiation theory from the greats (H. Raiffa, L. Susskind, Lax & Sebenius). I have been teaching negotiations for 35 years and do not “preach”, overemphasize, or reward integrative negotiations. Instead, I aim to equip my students with the knowledge and skills to meet new situations thoughtfully, and seek the information that will help them choose a negotiation strategy suitable to each situation. I mention some of my reasons in what follows.
1. If we negotiate one time about a single issue, it will be distributive and we better know how to do it. If multiple issues are at stake, the situation has integrative potential (meaning we can negotiate integratively, if we know how, but many will also handle such situations distributively).
Note that in single-issue situations (which are rather rare) one strategy is to add issues to create opportunities for trade-offs. Sellers at fairs and bazaars and car dealers know this well. They often attempt to create a relationship with the buyers, to get them to pay more for the sake of the (illusory) relationship. The strategy of adding/surfacing issues in other seemingly single-issue situations is worth teaching.
2. Although it has a positive connotation (who would want to compete instead of cooperating, which, as we have been taught since kindergarten, is the right thing to do) integrative negotiation should be used when we expect it to yield the best results for ourselves/our groups/our constituents. We might even make a moral argument – especially when negotiating on behalf of others – that it is wrong to cooperate for the sake of it, if we fail to secure the best outcome (given the circumstances). In other words, cooperation should not be an objective of negotiations. It is often the case that integrative negotiations yield better outcomes, especially in my field. But I believe we should teach it for what it accomplishes, not as a value in itself.
3. Context matters a lot, while our discussions tend to be “disembodied.” In local public disputes, for example, chances are overwhelming that over time the negotiators will meet again in different venues. Therefore, relationships matter and are worth maintaining. We often make a concession in a current negotiation with the expectation that it will help in future negotiations. An integrative approach that fosters mutual trust and preserves relationships frequently pays off more than a competitive approach. That is not necessarily true in other contexts or in specific disputes.
4. The “greats” some of us learned from tended to offer rationales for approaching specific negotiations distributively or integratively. This helps the students understand when/why distributive or integrative negotiations are called for, and be in charge of their choices. Several generations and how-to books later, some of these rationales got lost; integrative negotiation became “the right thing to do,” and students are even graded on it. While initially this may have helped “dethrone” competition as the default mode, it now deprives students of a real choice and of the skills for claiming value.
I end with a recollection of what Richard Shell said at a conference I attended: he contended that Fisher and Ury wrote their book to remind themselves to cooperate, while he wrote his (negotiation) book to remind himself to compete.