On Compromise, Negotiation, and Loss

NOMOS LV: Compromise (NYU Press, Forthcoming)

Ohio State Public Law Working Paper 383

53 Pages Posted: 6 Mar 2017 Last revised: 16 Mar 2017

See all articles by Amy J. Cohen

Amy J. Cohen

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: March 2, 2017

Abstract

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

Suggested Citation

Cohen, Amy J., On Compromise, Negotiation, and Loss (March 2, 2017). NOMOS LV: Compromise (NYU Press, Forthcoming); Ohio State Public Law Working Paper 383. Available at SSRN: https://ssrn.com/abstract=2926386

Amy J. Cohen (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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