The Lawyer's Dilemma: To Be or Not to Be a Problem-Solving Negotiator

Clinical Law Review, Vol. 14, p. 253, 2007

NYLS Clinical Research Institute Paper No. 08/09 #10

49 Pages Posted: 19 Nov 2008

See all articles by Alex J. Hurder

Alex J. Hurder

Vanderbilt University - Law School

Abstract

The problem-solving approach to legal negotiation requires that lawyers both compete and cooperate with their adversaries. This article urges legal education, and clinical legal education in particular, to endorse and teach the problem-solving approach to legal negotiation as the preferred approach for both litigation and transactional practices. Trial lawyers have been reluctant to embrace the cooperative aspects of negotiation, and ethical rules of the legal profession often seem to discourage cooperation with adversaries. As a result, lawyers often fail to reach beneficial solutions and deals that create value for their clients. The act of making a voluntary settlement in litigation or an agreement in transactional practice transforms each party's subjective evaluation of a potential deal into objective and measurable value. All parties to a voluntary settlement or agreement walk away better off than they would have been without the deal. Thus, problem-solving negotiation allows lawyers to create value for their clients. It should be the standard for legal negotiation.

Keywords: negotiation, legal negotiation, problem-solving approach, clinical legal education, legal education, dispute resolution

Suggested Citation

Hurder, Alex J., The Lawyer's Dilemma: To Be or Not to Be a Problem-Solving Negotiator. Clinical Law Review, Vol. 14, p. 253, 2007, NYLS Clinical Research Institute Paper No. 08/09 #10, Available at SSRN: https://ssrn.com/abstract=1304140

Alex J. Hurder (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

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