Conley, M; Cukier, N --- "Nine Lessons for Teaching Negotiation Skills" [2006] LegEdDig 43; (2006) 14(Spec Ed) Legal Education Digest 18

Nine Lessons for Teaching Negotiation Skills

M Conley Tyler & N Cukier

(2006) 14(Spec Ed) Legal Education Digest 18

15 Legal Educ Rev 1&2, 2005, pp 62–86

This paper outlines research that is showing new and innovative ways of teaching negotiation skills. Practical suggestions for class activities are offered including in areas such as observation of experts, emotional intelligence and analogical reasoning.

Spearheaded by the Program on Negotiation at Harvard Law School, negotiation theory has become an area of inquiry for a number of law schools around the world. It continues to inspire both significant theoretical work and mainstream “how to” guides. A key to learning from this academic activity is understanding that negotiation is a skill that can be taught and learnt. This trend towards negotiation skills training has been adopted by many law schools as part of a focus on clinical legal education. However, at a deeper level, the success of negotiation training has remained a mystery: how exactly does negotiation learning best occur? Until very recently, there was relatively little understanding of why negotiation training worked — or why some forms of negotiation training worked better than others.

The gap between the demonstrated success of negotiation teaching and our poor understanding of its dynamics has led to much greater interest and focus on the process of negotiation learning, particularly in the last five years. It is a paradox that on the one hand, popularisation of negotiation training has led to a more or less standard basic model; while on the other hand, there has been great diversity in what is being attempted on a more experimental basis. This means that a teacher with limited time can fall back on a model of presenting some theory, asking students to conduct a role play and debriefing their results. Personally, we have both used this basic model when law school curriculum time or client resources have been limited.

At the other end of the spectrum, there can be great diversity in how negotiation is taught. A number of authors have looked at the diversity of negotiation training in order to identify those practices that best promote learning. A survey of these findings reveals nine key lessons for negotiation teaching which are outlined below:

(1) Students Won’t Learn Just from Experience

Both negotiation teachers and students can fall into the error of regarding negotiation experience as equivalent to negotiation training.

(2) Students won’t Learn just from Theory

A similar trap comes from over-reliance on negotiation theory.

The reason that theoretical material alone will not necessarily improve negotiation performance is the difficulty of transfer to real-life situations.

This is not to dismiss the role of theory. Theory and prescriptive lessons are an essential accompaniment to negotiation simulations and other practical exercises. Theory can be particularly useful in learning about the preparation phase of the negotiation (especially vital for students who believe that the only important action occurs when parties are face-to-face). Theoretical instruction is also the only way to equip students to understand and apply concepts such as Best Alternative To Negotiated Agreement (BATNA).

This suggests the need to use prescriptive negotiation theory in conjunction with other learning methods.

(3) Role-Plays need to be Credible, Relevant and Contextual

Negotiation teachers can often make the error of writing role-plays with insufficient detail, which do not take into account many important factors which influence negotiations.

(4) Students need a Rich Review of Negotiation Experience

When time is limited, there can be a temptation to spend more time on theory and role play and less on review of negotiation experience. In fact, a rich review of experience is needed if students are going to achieve deep learning of material.

Review and self-reflection should be key components of any negotiation training.

(5) Students Learn Best Through Analogical Reasoning

Getting students to analyse and compare various examples has proven more effective than merely providing students with single examples to illustrate a principle.

Despite difficulties in teaching when to compare and transfer negotiation principles using examples, it has been proven that analogical reasoning is one of the most effective methods of teaching negotiation skills.

(6) Observation is One of the Most Effective Learning Techniques

Observational learning is based on the premise that negotiators can improve their own skills by observing those of others. That is, by watching an expert negotiator conducting a negotiation, one is better able to conduct one’s own negotiations.

Opportunities for observation should be incorporated into negotiation training as much as logistically possible.

(7) Real World Placements can be an Effective Training Tool

Another technique that gets little use in negotiation learning is real world placement or “service learning”. Service learning is a branch of experiential education with active engagement as its foundation.

It might be said that service learning is an even more effective tool than other simulation or role play exercises because it provides the student with many opportunities for learning and self reflection, rather than just one opportunity for feedback from an observer or instructor.

However, service learning (as a form of negotiation experience) needs to be supported by adequate theoretical material.

(8) Emotional Intelligence and Interpersonal Skills Assist Negotiation Learning

Training in negotiation skills by teaching tools for self reflection and emotional intelligence, is an often used mechanism in the university sphere. The theory behind this method of teaching negotiation assumes that training in emotions will provide law students with a greater capacity to connect with their clients. That is, to understand their clients completely and thoroughly, with focus and intention. Academics agree that this skill is necessary to form a relationship of trust.

(9) Technology can Enhance Negotiation Learning

An emerging technique for negotiation training is the use of information and communication technologies (ICT). Whilst there are many examples of teaching negotiation in universities using online methods, teachers of negotiation have tended to use technology to supplement rather than replace face to face negotiation and the teaching of negotiation. Some instructors are now being more ambitious with their use of ICT.

Whilst innovation in methods for teaching negotiation in universities and other institutions still has room for further development, the past five years have seen very significant positive development in trainers’ approaches to best practice teaching of this skill. Further studies conducted in relation to these nine lessons, specifically those utilising the ever-changing phenomenon of online technology, are required in order to further refine teaching methods and produce optimal learning outcomes.

We have focused in this paper on how to teach negotiation as if it were a static thing. In fact, at the same time as learning more about the dynamics of negotiation teaching, researchers are continuing to uncover new insights about negotiation processes and techniques themselves. Recent developments in negotiation theory have potential implications for those involved in negotiation training. There are a number of areas where research is rapidly expanding our understanding of negotiation processes which will inevitably have implications for training practice.

First, the impact of non-legal approaches to negotiation is going to continue. This will include areas such as neurolinguistic programming (NLP). Second, the multi-cultural environment in Australia’s law schools and law firms suggests the importance of including teaching on intercultural negotiation as part of the negotiation syllabus. Finally, the impact of medium of communication on negotiation is a significant area of inquiry.

Future negotiation teachers are likely to encounter a more sophisticated audience who seek guidance on some issues that are only starting to be well researched, including deep communication skills, the impact of technology on negotiation and inter-cultural aspects of negotiation. This requires negotiation teachers to continue to extend their knowledge of both theory and pedagogy. Negotiation teachers need to presume that they will continue to work in a dynamic environment where the parameters of both what is to be taught and how best to teach it will continue to evolve. This makes negotiation a challenging but ultimately highly rewarding area of legal education to be involved in.