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We Need a Better Consensus About Negotiation Theory

by John Lande
February 2015

ADR Prof Blog

John Lande

In previous posts, I argued that there are serious problems with the general consensus on negotiation theory reflected most clearly in Getting to Yes. I described problems with the system of negotiation models, which assumes that most or all negotiations can fit into two models of highly-correlated variables (or a few variations of these models). I used cases of actual negotiations to illustrate the incoherence of the traditional models. I analogized Thomas S. Kuhn’s theory of revolutions in scientific theories to suggest that our field is at the point where a number of us recognize “anomalies” in the traditional theory – or “paradigm” – of negotiation but we don’t have a consensus on a new paradigm to replace it.

So we are stuck with the traditional paradigm. At least for a while.

Of course, some of us may be quite content with the current paradigm, thank you very much. And others may have misgivings about some anomalies but feel that the traditional paradigm is good enough for their work.

I know, however, that some of us are very dissatisfied but feel trapped because we have to teach something and we don’t have a good, generally-accepted alternative. (See, e.g., “Labels Suck.”)

The remarkable Rethinking Negotiation Teaching project, spanning three conferences and four published volumes, not only included serious rethinking about pedagogy but also serious questioning about negotiation theory as well.

In my view, the anomalies of the current paradigm are too great to be resolved within the current system. At first, I considered proposing to rehabilitate the system of negotiation models, but I don’t believe that would work.

The Possible Beginning of a New Consensus

Although I am convinced that we need a new theoretical framework, I am not certain what it should be. I suggest a new framework in my article, but I assume that it might just be part of a process of developing a possible new general consensus. I am sure that this conceptualization can be improved and I hope it stimulates critique and improvement.

I think we should redefine the scope of negotiation to include the interactions leading up to the final negotiation. From this perspective, legal matters often involve a stream of negotiations, not merely a single event at the end of a process, as described in a previous post.

In addition, I think we should focus on the process of reaching agreement, not only the process of resolving disputes, as described in another post. Lawyers and parties reach numerous agreements where there is little or no dispute. Indeed, it can take good negotiation skills to create situations where people reach agreement without disputes. These agreements are important parts of lawyering and dispute resolution that we should not overlook.

Instead of thinking in terms of two (or a small number of) discrete, coherent models, I suggest disaggregating the models and analyzing key variables separately. The variables generally would be continuous (rather than limited to two extreme values), and most interactions would be located in the middle of the continua rather than at the extreme ends.

Unlike the traditional models, which assume that the variables are all highly correlated, a disaggregated framework makes no such assumption and better reflects the reality of negotiation in the cases I studied. In addition, disaggregating the variables permits more precision by analyzing variables at different times and by different actors in a matter.

I developed this table identifying important process characteristics derived from the prevailing theory. While these variables seem plausible, one could use other variables and characterize them differently. Thus the key point is the structure of the framework, not the particular variables in this version. Part V of my article discusses the framework and illustrates how it could be applied to the cases in my study.

If this analysis resonates with you, you may wonder what you can do about it. I will address this soon.

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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