Lande, J --- "Teaching students to negotiate like a lawyer" [2012] LegEdDig 42; (2012) 20(3) Legal Education Digest 30

• Teaching students to negotiate like a lawyer

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Teaching students to negotiate like a lawyer

J Lande

Journal of Law & Policy. Vol. 39, No. 109, 2012, pp 109-144

Lawyers negotiate all the time. Many lawyers, academics, faculty, and students think of negotiation as an activity designed only to resolve key substantive differences in finally settling litigation and arranging transactions. In addition to efforts to ultimately resolve such issues, negotiation involves a lot of activity before people try to resolve the ultimate issues.

Just as law school generally presents a distorted image of lawyers’ work by focusing disproportionately on litigation (especially appellate litigation), law school negotiation courses often convey a distorted image of legal negotiation by focusing disproportionately on the final stages of negotiation. In addition, negotiation courses typically focus only on the dramatic positional and interest-based approaches to negotiation, with little or no discussion of a less romantic and perhaps more common approach to negotiation in ordinary legal practice.

Obviously, negotiation instructors should portray legal negotiation as realistically as possible. To analyse negotiation, some legally-trained Alternative Dispute Resolution (ADR) academics use familiar concepts from contract law such as bargained-for exchanges of promises and/or performances. Others use concepts from ADR theory such as interest-based and positional negotiation (or numerous variations of these terms). These concepts can be useful to determine legal consequences of certain behaviour and to develop effective negotiation strategies. However, they are incomplete because they miss important parts of how many lawyers negotiate in real life.

Just as Professor Carrie Menkel-Meadow criticised ‘litigation romanticism’, many ADR academics engage in what might be called ‘negotiation romanticism’. Romantic narratives of negotiation involve a single, dramatic settlement event to resolve the ultimate issues at stake. One version – a legalistic and positional narrative – involves an extended series of strategic offers and counter-offers, often involving hard bargaining to maximise negotiators’ respective partisan advantages. Protagonists approach negotiation as a kind of high-stakes poker game in which they may win or lose great sums depending on how shrewdly they ‘play their cards’. The second version, an interest-based narrative, involves an explicit and systematic identification of parties’ interests and options with the goal of identifying solutions that would maximise both parties’ interests. The heroes of the interest-based stories use good communication and clever problem-solving tactics to save their clients from unnecessary impasse or suboptimal agreements, thus creating value, efficiency, and satisfaction for both parties.

There is not an extensive body of recent data that describes the extent to which lawyers actually use the various negotiation approaches, so it is difficult to provide an accurate portrayal of empirical reality; obviously, instructors should do the best they can.

To be sure, some research indicates that the more dramatic stories sometimes do occur in the real world. For example, Professors Milton Heumann and Jonathan Hyman interviewed New Jersey lawyers who said that the positional method was used entirely or almost entirely in 71 per cent of civil cases, a problem-solving method was used entirely or almost entirely in 16 per cent of cases, and a combination of methods was used in 17 per cent of cases. The statistics apparently give a misleading impression of how often lawyers actually use interest-based negotiation. However, the data is based on lawyers’ self-reports, which suggest that they use interest-based negotiation in up to 33 per cent of their negotiations, but when the researchers observed actual settlement negotiations, they ‘seldom’ heard ‘stories about the interests of the parties’. In interviews, the lawyers told the researchers ‘little about the underlying real-world interests of their clients and the opposing parties’. Moreover, despite the fact that 61 per cent of lawyers expressed a preference for greater use of an interest-based approach, the researchers were ‘struck ... by how little discussion there is about problem-solving negotiation in these lawyers’ descriptions of what it means to be cooperative’. This study suggests that lawyers typically do not focus on parties’ interests explicitly, let alone systematically identify them and a range of options that might satisfy those interests.

Empirical research also suggests that positional negotiations as portrayed in the dramatic narrative do occur, but perhaps less frequently than one might think. In Professor Herbert Kritzer‘s book, Let’s Make a Deal: Understanding the Negotiation Process in Ordinary Litigation, he analysed data collected by the Civil Litigation Research Project (CLRP). Based on this research, Kritzer described three general patterns of negotiation: (1)‘maximal-result, concessions-oriented’ (MRCO), (2)‘appropriate-result, consensus-oriented’ (ARCO), and (3)‘pro forma’ negotiation.

MRCO negotiation is essentially the same as positional negotiation, where both sides start with extreme positions and exchange a series of offers to extract maximal concessions from the other side. Although each side may consider legal norms in setting expectations and making arguments, negotiators make offers and use negotiation tactics designed to persuade the other side to make the greatest possible concessions rather than to simply replicate legal norms.

ARCO negotiation involves an assessment of the facts of the case to determine the appropriate result given the applicable legal norms. For example, in civil cases where the parties agree on liability, ‘the discussions concerning damages may be less a series of offers and counteroffers and more a process of exchange of information intended to place the instant cases in the context of presumed going rates’. Note that legal norms reflect practice culture, which is affected by, but not limited to, black-letter rules.

Although Kritzer suggested that the ARCO approach is similar to problem-solving negotiation, an ARCO approach seems different – a cooperative joint case assessment based on legal norms. Interest-based negotiation, rather than trying to approximate the likely court outcome, involves an explicit analysis of parties’ respective interests and creative development of options to maximise both parties’ interests. Moreover, the theory of interest-based negotiation contemplates generating a wide range of options, including options that courts would not typically order.

Kritzer’s analysis of his data suggests that in ordinary litigation, an ARCO approach is more common than a MRCO approach. He argued that demands and offers in an ARCO negotiation, unlike in a MRCO negotiation, would be close to lawyers’ perceptions of the actual amount at stake. His research shows that 52–69 per cent of initial offers and demands reflected the parties’ assessments of an appropriate resolution (i.e., an ARCO approach) whereas only 13–32 per cent of initial demands and offers reflected a MRCO approach. In MRCO negotiations, one would expect numerous exchanges of demands and offers but Kritzer found that there were few exchanges in most negotiations. The number of exchanges was positively related to the amount at stake, but even for the largest cases, less than a third of these cases had three or more exchanges of demands and offers.

Consistent with Kritzer’s description of the ARCO approach, Professor Lynn Mather and her colleagues research on divorce lawyers in Maine and New Hampshire found that many lawyers followed a norm of reasonableness in negotiation. This norm entails realistically understanding the likely legal outcomes in particular cases and counselling clients to ‘accept[] ... settlement close to the typical result’. Reflecting this norm, lawyers reported that they do not start with ‘extreme’ or ‘ridiculous’ positions that are inconsistent with what everyone knows’ about divorce. Although lawyers using an ARCO approach try to be cooperative, that does not necessarily involve an explicit and systematic analysis of parties’ interests and options, the hallmarks of true interest-based negotiation.

If a substantial portion of lawyers’ real-life negotiation is an ARCO process as Kritzer described, it might be called ‘ordinary legal negotiation’ (OLN). With its primary orientation to legal norms, an OLN approach seems distinct from both power-oriented positional and interest-oriented negotiation models.

One distinction between these approaches may relate to the lawyers’ goals. In the Mather study of divorce lawyers, when researchers asked lawyers whether their primary goal was to reach a fair settlement or to get as much as possible for their clients, 35 per cent chose fair settlement, 23 per cent chose the best result for their clients, and 42 per cent gave a combined choice such as ‘reaching a settlement fair to my client’. Although these frequencies may not be typical of lawyers in many contexts, the goals may be typical of aspirations in interest-based, positional, and ordinary legal negotiation, respectively. In OLN, lawyers presumably try to get good results for their clients and believe that they are more likely to do so through cooperative conversation than through hard bargaining or systematic analysis of interests and options.

Moreover, there is not a perfect relationship between negotiation models and negotiation styles, and lawyers using each of the models may be more or less cooperative, effective, trustworthy, and so on. Even so, taken with a grain of salt, the models may be useful in identifying the predominant character of many negotiations, while noting different elements at particular moments in a process.

If OLN actually is fairly common in practice, then negotiation instructors should devote substantial coverage to it in addition to positional and interest-based models of negotiation. Thus, in covering the range of negotiation experiences that students are likely to encounter in practice, instructors can teach that, instead of viewing negotiation solely as a dramatic settlement event to resolve the ultimate issues in a matter, sometimes it is a low-key process that sounds more like normal conversation. Moreover, negotiation can be presented as a process that sometimes occurs over an extended period of time without necessarily involving explicit quid pro quo offers or an interest-and-option analysis.

Negotiation instructors should not only depict general negotiation models realistically, they should also provide a realistic portrayal of the range of situations in which lawyers regularly negotiate. Instructors who want to give their law students a realistic understanding of how lawyers actually negotiate should discuss the wide range of additional situations where negotiations occur.

Most negotiation instructors rely heavily on having students perform simulated negotiations. The benefit from simulations depends, in major part, on whether the simulations realistically portray important negotiation issues in a meaningful way. Over the course of a semester, instructors generally should try to portray the range of legal negotiation behaviour as realistically as possible.

Most negotiation instruction probably focuses on ultimate resolutions of matters with little attention to the context of the negotiations. This is reflected in the predominant use of simulations in which students portray lawyers who ‘parachute’ into a case soon before the ultimate negotiation. Some simulations require students to include a phase of lawyers preparing clients for negotiation, which provides greater context for the ultimate negotiation. Even so, students in these exercises do not simulate the critically important experiences that lead to the ultimate negotiation, particularly the development of lawyer-client relationships as well as relationships between the different sides in the matter.

Many simulations provide little or no information about the relevant legal rules, exacerbating problems related to parachuting into a situation with little context. Moreover, providing a substantial amount of doctrinal material may lead some students to focus too much on the legal issues, distracting them from critical negotiation issues. In addition, incorporating legal rules is difficult when students do numerous short simulations. Students often have a hard time absorbing all the factual information in a simulation and they can easily be overwhelmed if they must also integrate substantial legal information. Although these are legitimate concerns, the result is that the students’ simulated experiences often lack this critical element in real-life legal negotiations.

Furthermore, simulations also often provide insufficient information about the history of the dispute, which is a major factor affecting people’s perspectives and motivations in negotiation.

Some negotiation simulations address these mixed motives by including information about the parties’ perceived alternatives to a negotiated agreement and their attitudes about them (though many simulations provide little or no such information). However, this is generally not sufficient for students to get a realistic feel of the context as their characters would perceive it. To really ‘get’ the parties’ and lawyers’ perspectives, students need to have more extensive interactions than are possible by simply ‘parachuting’ into a single-stage simulation.

By using multi-stage simulations that extend over a considerable period of time, instructors can focus on each stage, one at a time, rather than having all stages collapse into a single, relatively brief, experience.

By making students responsible for ‘setting the stage’ for the ultimate negotiation through a series of interactions in a case, the choice of negotiation model – possibly including ordinary legal negotiation – can flow naturally from the early stages of the simulation. Some stages might include: (1)initial client interview; (2)negotiation and drafting of a retainer agreement; (3)developing a relationship with the counterpart lawyer; (4)conducting factual investigation and/or legal research; (5)working with their counterpart to plan the negotiation process; (6)resolving discovery disputes; (7)preparing the client for negotiation sessions; (8)conducting the ultimate negotiation; (9)engaging a mediator and/or mediating the matter; and (10) drafting a settlement agreement. Instructors might skip some of these stages and/or include others. Some stages may involve negotiations in themselves (such as procedural negotiations between counterpart lawyers) and others may simply be important parts of a matter leading up to an ultimate negotiation (such as doing legal research or developing a negotiation plan).

There are complementary advantages and disadvantages of both single-stage and multi-stage simulations. Using both types of simulations enables instructors to give students the benefits of both. Instructors can use single-stage simulations in the early classes to lay the groundwork for discussing the issues arising later in the course during multi-stage simulations.

I wanted to have students do two multi-stage simulations in my course to give each student the opportunity to play both a lawyer and a client in an extended simulation. Students can learn a great deal by being on the receiving end of legal services and I wanted every student to have that opportunity. Doing two multi-stage simulations also gives students experience negotiating both a lawsuit and a transaction. There are important differences between the two negotiation contexts and students can learn important lessons by comparing the two. Moreover, law school curricula often do not provide much instruction in transactional matters and including a transactional negotiation would help address that imbalance.

In simulations of cases in litigation, students could be assigned to work together as pairs of lawyers, with one playing the role of litigation counsel and the other as settlement counsel. As the name suggests, settlement counsel are retained solely to negotiate and they may operate simultaneously with the clients’ litigation counsel in the same matter. For the purpose of a course simulation, separating the roles permits students to personify conflicting impulses. In particular, settlement counsel are likely to prefer a more cooperative, interest-based or ordinary legal approach to negotiation whereas litigation counsel are likely to prefer a more adversarial, positional approach. In real life, lawyers embody both impulses, often causing them to feel trapped in a ‘prison of fear’, preventing them from suggesting negotiation early in a case. Assigning students to roles of litigation and settlement counsel for each client adds logistical complexity.

Pairs of students could also be assigned to teams playing the ‘same’ clients to reflect the internal conflict within a single client. For example, if the client is a business, then one student might be assigned to play the sales director and another could play the chief financial officer and they would have different perspectives and interests from each other. Having students portray conflicting perspectives of lawyers and clients can lead to rich learning experiences.

Instructors may face special problems when relying heavily on simulations. Students do not realise the full benefit of simulations if their classmates are not diligent in performing their responsibilities. Therefore instructors may need to implement strategies to prevent or minimise such problems. In particular, instructors may establish a rule of diligence such as: ‘A student shall act with reasonable diligence and promptness in performing assignments in this course’. In the first class, students can discuss why lawyers and students sometimes are not diligent, the consequences to clients and classmates, and how such problems can be avoided or resolved properly.

At the outset of my course, I announced that I would conduct a confidential reputation survey at the end of the course. I also assigned students to write a brief description of how they would like other lawyers to perceive them in practice, the consequences of such a reputation, and steps that they would take to achieve their desired reputations.

Since simulations are critical elements of most negotiation courses, debriefing is an especially important part of the educational process. Without effective debriefing, students can easily learn the wrong lessons, such as making overgeneralisations from a single experience.

To maximise the benefit of simulations, instructors generally should plan to spend at least a quarter or half as much time debriefing as the students spend doing the simulation itself.

The debriefing process is especially important because students need to learn from their own experiences as law schools, CLE programs, and mentors cannot teach lawyers everything they need to know. Often, it is helpful for students and lawyers to write self-assessments as part of a debriefing process. Good debriefing thus teaches students how to learn to learn. For each exercise in my course, I distributed one-page self-assessment forms with about five questions (varying depending on the exercise) and I gave students a few minutes in class to answer the questions. The forms included an instruction to keep the forms to provide the basis for a summary assessment at the end of the course.

Instructors assign activities that promote achievement of their objectives for their students. For example, instructors who are most interested in teaching knowledge of legal doctrine and analytical techniques are likely to require students to take exams. Instructors who want students to develop practical skills are likely to require students to demonstrate performance of those skills in person, on video, or through self-assessments.

Negotiation instructors may want to provide more options for assignments because there are many legitimate educational goals in negotiation courses. Instructors might require students, early in a semester, to describe their individual objectives and then give students some choice in the activities used to achieve those objectives.

Even if instructors give students some discretion about what activities they would perform, instructors can also require all students to do certain assignments. For example, instructors might require all students to take an exam, submit videotaped negotiations, write self-assessments of simulation experiences, draft settlement agreements, or complete other assignments.

Teaching students to negotiate effectively is central to their thinking, acting, and being like good lawyers. Virtually all lawyers in every type of practice spend much of their time negotiating. So, it is important that law schools provide students with the best possible instruction about negotiation.