26 Pages Posted: 8 Jul 2012
Date Written: July 6, 2012
Legal negotiators are in the business of making commitments. Orchestrating charged discussions, coming up with creative ways to satisfy interests, sifting through relationships and responsibilities, drafting contracts and other complex agreements, dealing with the aftermath of broken promises – in all cases, establishing and re-establishing what and how the parties commit to one another – are central to the negotiating enterprise. In a standard interest-based negotiation or mediation, commitments are the final stage of a process in which negotiators managed both substantive issues and relational concerns while intentionally dismantling unproductive positions so that the parties could explore the integrative potential of identifying underlying interests and then generating value-creating options satisfying those interests. Put another way, interest-based processes transform some number of party interests into action items, deliverables, contract provisions, memorandums of understanding, preambles, press releases, promises, declarations of intention - that is, interests become commitments.
And often the opposite is true: commitments can become interests, insofar as they are constitutive elements (explicit or not) in future negotiations and decisions. This transformation is less apparent, and indeed might operate invisibly. That a decision made today might shape or foreclose the choices of tomorrow may seem intuitive, but often does not occur to parties negotiating issues in the present moment. The binding nature of commitments can clarify present priorities and facilitate joint efforts, but can also hinder quick responses to future opportunities or threats. As such, a tension exists between the need to make commitments and the (often unexpected and intractable) difficulties that arise from having made them. Legal negotiators, as commitment makers and re-makers, work within this tension all the time without necessarily being aware of it.
The complex interrelationship between commitments and interests is the inspiration behind this Essay, which maps some of the salient features of the commitment-interest relationship as a starting point for further research into the dynamics and possibilities of this interaction. Such an exercise promises both theoretical and practical benefits. As a theoretical matter, reconceptualizing negotiation as an ecology of interest-based commitments helps reorient the negotiator (or the mediator, facilitator, etc.) toward better understanding of the ongoing significance of past decisions as well as the future implications of present agreements. As a practical matter, incorporating a more nuanced treatment of interest-based commitments into a negotiator’s structured preparation and process may improve agreement durability and participant satisfaction.
Keywords: negotiation, alternative dispute resolution, dispute resolution, dispute systems design, ADR
JEL Classification: D81, M10
Suggested Citation: Suggested Citation