A Framework for Advancing Negotiation Theory: Implications from a Study of How Lawyers Reach Agreement in Pretrial Litigation

Abstract

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal negotiations and it uses cases from this study to illustrate the proposed framework. Instead of focusing only on bundles of characteristics for each theoretical model that are assumed to be highly correlated with each other, the framework unbundles the variables, which permits more accurate description of negotiations. The variables in the framework are: (1) the degree of concern, if any, negotiators have for the other side, (2) the communication process used in trying to reach agreement, (3) the extent that negotiators create value in the negotiation, (4) the negotiators’ tone, (5) the use of power, and (6) the source of norms that negotiators use. These variables are likely to be causal factors affecting particular negotiation goals such as efficiency and satisfaction of parties’ interests. The conclusion discusses implications and recommendations for academics, practitioners, and instructors.

Keywords: negotiation, adversarial negotiation, positional negotiation, distributive negotiation, problem-solving, interest-based negotiation, integrative negotiation, cooperative negotiation, ordinary legal negotiation, negotiation theory, empirical research