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 … Continue reading Problems with the System of Negotiation Models, Part 1
That’s one of the conclusions in an op-ed in the New York Times today. Researchers Anita Woolley, Thomas W. Malone, and Christopher Chabris did a series of studies finding that the “smartest” teams (measured by performance in logical analysis, brainstorming, coordination, planning and moral reasoning) were distinguished by three characteristics. First, their members contributed more … Continue reading Want a Smarter Group? Add More Women
Does ADR include trials? I know, I know. This sounds like another one of my dumb questions. Although I have a pretty broad conception of DR, my initial reaction was that trial is one of the few procedures I would exclude from DR. As described below, on reflection, I probably would include trials. More importantly, … Continue reading What is (A)DR About?
My colleague, Professor S.I. Strong, recently conducted a large-scale empirical study on the use and perception of international commercial mediation and conciliation that appears to be the first of its kind. The information was gathered to assist the United Nations Commission on International Trade Law (UNCITRAL) as it considers a proposal from the Government of … Continue reading Strong UNCITRAL Study Cited by United Nations
“Oh Boy! A fight.” That’s often what I say in class when students vigorously disagree. I like these “fights” because they usually lead to helpful discussions that clarify differing views. So when Andrea wrote her post, Puffing Sucks, I thought, “Oh Boy! A fight.” She argues that puffing is “[l]ying, through and through,” … Continue reading Some Puffing Sucks . . . But Developing Good Relationships Is More Likely to be Effective than a New Rule
We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base … Continue reading What is Negotiation?, Part 2
I love teaching law students about misrepresentation in negotiation. I call this class, “lying like a lawyer.” Of course, civilians (i.e., non-lawyers) regularly fudge the facts, let’s call it. While it might be nice if there were bright-line norms of scrupulous honesty that were universally followed, that’s never gonna happen. I’m no expert … Continue reading To Puff or Not to Puff . . . (or When and How to Puff)
I know that this sounds like another one of my dumb questions. But the meaning of negotiation is surprisingly opaque. People have very different ideas about this. And the definition you choose has important practical implications. I stumbled onto this problem as I studied and taught negotiation in recent years. In a forthcoming … Continue reading What is Negotiation?