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How Can You Get a Piece of the Action?

by John Lande
March 2015

Indisputably

John Lande

In a series of posts, I described significant problems with the traditional negotiation paradigm of two coherent models, positional and interest-based negotiation (or other labels for essentially the same models). This paradigm has been helpful in moving us forward in recent decades. But simply saying that something was a interest-based or positional negotiation not only doesn’t convey things clearly, but it actually can be misleading.

I argued that there is a need for a better paradigm of negotiation theory and suggested a possible beginning for the process of developing a consensus about a new paradigm.

If you agree with this analysis, you might wonder how you can be part of the process of developing a new paradigm.

If a critical mass of people in our community believes that the current theoretical structure needs to be replaced, we need to do a number of things.

First, it would help to build a general consensus about the nature of the problems.

But that is not enough. You can’t replace something with nothing.

It would be useful to have shared criteria for a new structure. For example, I think it would be important to be sufficiently concrete that academics, practitioners, and students would readily interpret theoretical concepts as describing the same behavior. (In research terms, this would be analogous to high inter-rater reliability.) As a practical matter, it would help to use concepts that practitioners and students can easily and consistently understand and use when planning and analyzing their interactions in negotiations.

I think it should be at a Goldilocks level of abstraction – not so simple to be meaningless but not so complex that it is too hard to understand and express easily. Perhaps most important, academics, practitioners, and students should find it helpful in solving their problems. There may be other important criteria.

It would help to do a thorough literature review to identify potentially useful ideas. Lots of people have developed interesting ideas that are overlooked in the huge volume of scholarship that is constantly being produced. It is particularly challenging to get a full view of negotiation research because academics in so many different disciplines study and write about it.

There are a variety of other things that people might do to help move this project forward. These might include consulting practitioners, conducting research, and developing possible theories for a general consensus, among others.

In addition, it would help to develop, share, and test teaching materials about new ideas. As a practical matter, we have a new crop of students to teach every year and it would be nice if we can teach them ideas that we don’t think are highly problematic.

For example, in my negotiation course, I now use a self-assessment form based on the framework in my article, which you are welcome to use and improve. You may develop other teaching materials.

In the new edition of my book (forthcoming), Lawyering with Planned Early Negotiation, I have a short chapter that briefly summarizes the traditional models (so that students will understand others’ references to them) but focuses primarily on the variables in my framework. (If you would like to get a draft of that chapter, I would be happy to provide it.)

Observing student reactions can be a very helpful way to test new ideas. This can be the source of new scholarship as well as improved teaching materials.

By definition, developing a better consensus would necessarily be a community project. That doesn’t mean that everyone – or even a large number of people – needs to be involved. (Sometimes too many cooks makes the kitchen too crowded.) But it would require a number of people to work on the problem, individually and/or in coordination.

I think that it would be especially good for some junior and mid-level academics to work on this, though this need not be limited to them. In any case, this would take some time and require an openness to new ideas.

I think that this effort would provide a great service to our community, and the people who work on it might get well-deserved recognition.

So you might consider making this part of your scholarly agenda. You might also use this effort to suggest topics for students’ papers.

I don’t know if we can develop a new general consensus. But I do know that the traditional paradigm is seriously flawed. And that it is worth the effort to try to develop a better one, even if we don’t stimulate a general paradigm shift in our community.

If you are intrigued about this and might want to work on a piece of this in the next year or two, I would be happy to discuss this with you, including the possibility of helping you with some research and writing (possibly co-authoring), doing the dishes, or whatever.

Biography


John Lande is the Isidor Loeb Professor Emeritus at the University of Missouri School of Law and former director of its LLM Program in Dispute Resolution.  He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison.  He began mediating professionally in 1982 in California. He was a fellow at the Program on Negotiation at Harvard Law School and the Director of the Mediation Program at the University of Arkansas at Little Rock Law School. His work focuses on various aspects of dispute systems design, including publications analyzing how lawyering and mediation practices transform each other, business lawyers’ and executives’ opinions about litigation and ADR, designing court-connected mediation programs, improving the quality of mediation practice, the “vanishing trial,” and planned early negotiation.   The International Institute for Conflict Prevention and Resolution gave him its award for best professional article for Principles for Policymaking about Collaborative Law and Other ADR Processes, 22 Ohio State Journal on Dispute Resolution 619 (2007). The ABA recently published his book, Lawyering with Planned Early Negotiation: How You Can Get Good Results for Clients and Make Money.  His website, where you can download his publications, is http://www.law.missouri.edu/lande.



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