Taking Advantage of Opportunities in 'Litigotiation'
21 Dispute Resolution Magazine 40 (Summer 2015)
8 Pages Posted: 21 Aug 2015
Date Written: August 21, 2015
When discussing negotiation of litigated cases, practitioners and academics often ignore pretrial litigation activities, treating them as if they are unrelated to the negotiation of the ultimate issues. Interactions leading up to the final settlement event often are considered merely preparation for the endgame, if they are considered at all. This narrow conception of negotiation in litigated cases misses critical parts of the dispute resolution process and thus leads to misconceptions about how it really works and what lawyers really do. In reality, lawyers don’t just litigate or negotiate, they normally “litigotiate” throughout a case, in the words of Prof. Marc Galanter.
This article is partially based on a study in which I interviewed respected lawyers about their negotiation processes in pretrial litigation. Based on accounts of actual negotiations, I define negotiation simply as a process of seeking agreement, regardless of whether there is a dispute or exchange of offers. This broad conception of negotiation describes lawyers’ actual behavior better than narrower, conditional conceptions of negotiation. Through this lens, one can see that lawyers conduct a continuing stream of negotiations, not only with counterpart lawyers, but also clients and many others in a case.
Most pretrial activity is oriented toward negotiation. Although the purported purpose of pretrial litigation is to prepare for trial, this preparation is inextricably intertwined with negotiation because the anticipated trial decision often affects the ultimate negotiation. When lawyers approach their cases as “litigotiation,” their goal is to plan to reach agreement sooner, cheaper, and better. They take control of their cases and prepare to negotiate at the earliest appropriate time. This involves understanding the clients’ interests, the interests of the other side, the relevant facts and law; using neutrals and courts as appropriate; and making strategic decisions about timing of the process.
People with insight and initiative can take advantage of the great opportunities offered by understanding the realities of litigotiation. Lawyers who diligently use these techniques should increase their effectiveness as litigotiators, getting good settlements while being prepared to vigorously litigate and try cases if needed. This should lead to better service to clients, which can increase lawyers’ professional satisfaction, produce goodwill, and relieve stress from unnecessary conflict. By recognizing the dynamics of litigotiation, neutrals can offer a broad range of services to help manage the process more efficiently. In addition to assisting with the ultimate resolution of a case, neutrals can promote good working relationships between counsel, exchanges of information and documents, planning for attendance of particular individuals (including experts), preparation of parties, scheduling and logistics, and documentation of procedural agreements. The broader conception of negotiation can open new scholarly agendas. Dispute resolution scholars, who previously might have focused only on final settlement events, can develop more realistic understandings of how lawyers negotiate throughout litigation. Law school faculty who teach about the dynamics of litigotiation in a wide range of courses can provide students with more realistic understandings of how lawyers actually work.
Keywords: negotiation, litigation, litigotiation, legal practice, dispute resolution, legal education, scholarship
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