Getting Deals Done: Enhancing Negotiation Theory and Practice Through a Therapeutic Jurisprudence/Comprehensive Law Mindset

Abstract

This article explains how a therapeutic jurisprudence/comprehensive law mindset can augment negotiation theory and skill to help get deals done. Therapeutic jurisprudence (TJ) is a vibrant vector of the larger comprehensive law movement of which it is a part. Both TJ and comprehensive law are integrated, humanistic, interdisciplinary approaches to addressing legal matters. They explicitly value interpersonal, emotional, psychological, and relational concerns and incorporate them into theory and practice without shortchanging substantive law or legal rights, responsibilities, duties and obligations. They are a “legal rights plus” approach to law. Like the studied theories of negotiation, they are influenced by psychology and social science.

There are a number of parallels between TJ/comprehensive law and formal studied approaches to negotiation. Virtually all negotiation practice and formal theories of negotiation already recognize that human emotions impact negotiations. This article recommends that a mindset infused with therapeutic jurisprudence and certain other vectors of comprehensive law can impart subtle enhancements to formal theories of negotiation and practice to help get deals done. As a working title, I refer to this as comprehensive law infused negotiation. For example, while the sophisticated, interest based core concerns approach to negotiation uses emotions to understand the perspectives of the other side and uses emotions as a tool to move the negotiations to a successful conclusion, TJ makes positive (therapeutic) emotional outcomes part of the desired outcomes of the negotiation, wherever this can be accomplished without adversely impacting one’s own side’s underlying substantive concerns in the matter. This does not mean that the purpose of the negotiation is to improve the emotional and corresponding physical health of everyone involved in the deal. Nor does it assert that therapeutic interests should outweigh other norms, but it does encourage negotiators to remain continuously cognizant of therapeutic and anti-therapeutic impacts. This enables them to more precisely weigh the competing interests, and keep therapeutic goals in mind as they utilize the techniques of sophisticated negotiation theory and engage in creative problem solving and preventive law. It helps them arrive at agreements that are both substantively efficacious and therapeutic. It fosters an environment conducive to successful implementation. An agreement that meets the dignitary and human emotional needs of the other side as well as one’s own business and dignitary goals is likely to reach a successful conclusion. It pays huge dividends when a multi-year deal requires ongoing cooperation to be successful, especially when mid-course modifications are needed.

Keywords: therapeutic jurisprudence