The Origins of Problem Solving Negotiation and Its Use in the Present
Discussions in Dispute Resolution, (Sarah Cole, Art Hinshaw and Andrea Kupfer Schneider, eds., 2018, Forthcoming
12 Pages Posted: 23 May 2018
Date Written: May 21, 2018
This is the (unedited) responsive Commentary to several essays assessing the impact of “Toward Another View of Legal Negotiation: The Structure of Problem Solving,” 31 UCLA L. Rev. 754-842 (1984) to appear in the edited volume Discussions in Dispute Resolution, a selection of leading articles published before 2000, on dispute resolution topics, with commentaries by a variety of ADR scholars.
In this essay I describe the multiple theoretical disciplinary sources, including actual legal practice, that initially informed both the theory and practice of negotiation (and later mediation) as a process of “problem solving,” rather than an adjunct to adversarial litigation. The piece reviews sources in game theory, political science, sociology and the nascent clinical legal education literature of the 1970s and early 1980s. It offers some conceptualizations of many different “models” of negotiation that should be contexually analyzed, depending on a variety of factors, desired and possible outcomes, and different behavioral choices. In short, “one size will not fit all,” consistent with my other work on process pluralism.
It reviews some of the critiques of this approach to negotiation, including ongoing concerns about how empirically valid it is to assume problems can be “solved.” Problem solving negotiation is not about “win-win” outcomes, but about seeking to meet the “needs” (from a social welfarist perspective) of the parties. “Needs” theory and purpose is contrasted to the more commonly assumed instrumentalist issues of client “interests” which are also a part of the negotiation canon, but different. The essay stresses the importance of analysis (and “science”) of negotiation stakes, purposes, outcomes, parties and structural factors, before choices about styles or approaches (or the “art”) of behavior can be made. Modern complexities of negotiation (scaling up, multiple issues and parties, application to international and non-legal disputes, as well as issues in the larger polity) are briefly reviewed, as well as suggestions for new research and practice questions to be pursued in the future.
Keywords: negotiation, conflict resolution, legal education, legal profession
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