On Compromise, Negotiation, and Loss
NOMOS LV: Compromise (NYU Press, Forthcoming)
53 Pages Posted: 6 Mar 2017 Last revised: 16 Mar 2017
Date Written: March 2, 2017
This essay explores two conceptions of compromise that are missing from the theory and practice of legal negotiation and related fields in alternative dispute resolution (ADR): compromise shaped by principles and compromise shaped by constraints. Compromise shaped by principles describes how people experience loss not as a strategy to produce gain but rather as a practice of caring — at a cost to themselves — for the values or wellbeing of another or caring for values or principles in the abstract. Compromise shaped by constraints describes how people experience the effects of material and social power that make loss feel not justified but rather structurally compelled. The essay argues that ADR, as it developed in the shadow of law and economics, came to employ a very narrow conception of compromise and in so doing arrested the development of a more pluralistic problem-solving praxis — one focused on more than simply how people do or should strive for gain and therefore capable of engaging with the values and conditions that legitimate or compel loss.
Keywords: compromise, alternative dispute resolution (ADR), legal negotiation, law and economics, loss
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