The indefatigable Debra Berman (South Texas) raised an interesting issue on the listserv, which has been posted here, asking if we are doing our students a disservice by over-emphasizing integrative bargaining in our negotiation courses. Her question is reminiscent of questions raised by James J. While, Gerald Wetlaufer, and Russell Korobkin among other over the years. In fact, White remarked in his book review of Getting to Yes for the Journal of Legal Education that GTY misses what really happens in negotiation – the distribution of value. We can debate whether that’s right or not, and Roger Fisher famously responded “I write about how I wish the world to be, not how it is” or something along those lines. And it’s important to note that Carrie Menkel-Meadow has discussed, in her famous 1984 article and other places, the work of integrative bargaining is much more challenging and interesting than simply engaging in distributive behavior.
No doubt, the intellectual challenge and call for creativity has drawn us in like moths to the flame. In comparison, the strategy of bargaining is relatively boring, and soon will be outsourced to machines with artificial intelligence to determine what our offers should be and whether we’re reaching a projected zone of potential agreement. Where’s the fun in that? Also, note the terminology we have developed to describe each – interest based, principled, or problem-solving compared to competitive or adversarial. Which do you think the academy favors?
I am a firm believer that the most important concept in negotiation is the Negotiator’s Dilemma where by David Lax and James Sebenius describe creating and claiming value as opposite sides of the same coin called negotiation. Thus, to be a good at negotiating, you have to be good at both. There is no good or bad – they are simply are the tasks to be done. In Dispute Resolution & Lawyers: A Contemporary Approach (6th ed), my co-authors and I consciously moved away from the loaded terminology of the past to use the Negotiator’s Dilemma as the operational theme for the negotiation chapter. In fact, we like it so much that we’re getting close to submitting the manuscript for a spin-off negotiation book, Negotiation and Lawyers with a tentative April publication date to get these ideas out to a broader audience.
And yes, the GTY framework nicely fits within the Negotiator’s Dilemma theme, and both objective criteria and BATNA fit on the distributive side of the equation – as do other vital distributive negotiation lessons.