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A History Lesson in Negotiation

by John Lande
August 2016

Indisputably

John Lande

When relevant to DR issues, I have noted things in our political life such as President Obama’s lectures on listening and compromise, Republican nominee Donald J. Trump’s book, The Art of the Deal, and the applicability of an arbitration clause in Gretchen Carlson’s suit against former Fox News CEO Roger Ailes.

In her acceptance speech at the Democratic National Convention, Democratic nominee Hillary Clinton gave a history lesson about the negotiation of the Declaration of Independence.

“My friends, we’ve come to Philadelphia — the birthplace of our nation — because what happened in this city 240 years ago still has something to teach us today.

“We all know the story.

“But we usually focus on how it turned out — and not enough on how close that story came to never being written at all.

“When representatives from 13 unruly colonies met just down the road from here, some wanted to stick with the King.  Some wanted to stick it to the king, and go their own way.  The revolution hung in the balance.

“Then somehow they began listening to each other … compromising … finding common purpose.  And by the time they left Philadelphia, they had begun to see themselves as one nation.”

This account highlights the success of negotiation in 1776.  In the following decade, there was another successful negotiation that led to the adoption of the US Constitution, which was a great achievement.  Of course, it was a flawed agreement in significant ways, especially the acceptance of slavery and omission of women as full-fledged citizens.

One can look at our history as a 240-plus-year multi-party multi-issue negotiation in which our shared understandings have been revised and refined.

One may not think of the Civil War as a negotiation, but it was part of the process that led to the adoption of the 13th, 14th, and 15th Amendments.  Prussian General Carl von Clausewitz is often quoted for the notion that “war is merely the continuation of politics by other means.”  There is an analog in the litigation context, where parties may engage in scorched-earth tactics to gain advantage in negotiation.

Negotiation plays an important part in the adoption of amendments to the Constitution, enactment of statutes implementing the Constitution, and setting of national policies.  As cases go through appellate litigation, there is a form of negotiation between courts and within courts about interpretation of the law.  Sometimes there is an exchange between the courts and legislatures as they advance different policies about the same issues.  There is a lot of negotiation between the public and the government in the enactment of statutes.  And elections are a form of negotiation between candidates and voters about who will hold office and what policies will be adopted.

Some might not consider this as negotiation – or wholly negotiation – so we might think of it instead as a dynamic decision-making process involving a lot of negotiation.

I have a broad definition of negotiation – a process of seeking agreement – as described in my Negotiation Framework article.  In that piece, I analyzed definitions in law school texts and found no consensus about essential elements of a process to be considered as negotiation.  For example, some people think of negotiation as involving (1) an exchange of offers occurring close in time to each other, (2) multiple options for handling an issue, (3) an explicit quid pro quo, and/or (4) something different from normal conversation or professional courtesy.

Using my definition of negotiation, one could identify various illustrations of negotiation in the various legal and political negotiations I mentioned.

Since this is the height of election season, I will focus on some of the negotiations involved in our elections.  Individuals and groups make demands on candidates, who take certain positions in response.  Candidates and various entities negotiate coalitions to advance shared goals.  The extensive negotiations of the Democratic Party platform by the Sanders and Clinton campaigns is an overt example.  Behind the scenes, candidates of both parties meet with campaign donors and undoubtedly exchange understandings.  One can even consider that candidates make promises in exchange for an act – a vote.  Although this doesn’t produce legally binding contracts, failure to perform may result in significant consequences.  For an extreme recent example, just ask former President George H.W. “Read My Lips” Bush.

I appreciate Secretary Clinton’s attention to the process and not only the results of negotiation.  She recognizes a common hindsight bias of assuming that results were inevitable.  When people act in the moment, life looks very different.  And analysts and can point to contingencies that might have produced different results.

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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