I’ll see you in the negotiating room

One of the best-kept secrets of the legal profession is that real lawyers do not try to go to court. Instead, they negotiate. Statistics on trial rates from many common-law jurisdictions, including the United Kingdom and the United States, suggest that most civil actions are settled out of court. Figures vary, but can be as high as 95 per cent. However, the most productive negotiations have traditionally been on the steps of the court and only after heavy transaction costs have been incurred. Underpinning this is a culture that is adversarial, competitive and rights-oriented. Rambo rules, or in the terminology of negotiating scholars, distributive bargaining takes precedence over bargaining that seeks an optimal solution for both parties.

In addition to their dispute-assistance role, lawyers assist clients to make deals by agreeing documents and terms of commercial or other transactions, which seek to allocate benefit, obligation and risk between parties. Unfortunately, deal negotiation often turns out to be more complex, time consuming and expensive than clients anticipate because of the uncertainties and ambiguities of legal interpretation, future contingencies and divergent client interests. It can also fall prey to the zero-sum bargaining mindset.

Robert Mnookin and his colleagues chart the dynamics of distributive bargaining and argue the case for, and the techniques to deliver, “problem-solving negotiation” as an alternative. Their case is that the mindset of adversarialism and zero-sum negotiation drives out the added value and relationship benefits potentially available in most legal negotiation settings, whether dispute resolution or deals.

Their theoretical framework rests on three tensions that underpin all negotiations and sets the scene for failure to find value, or for wasted costs, in much legal negotiation. The first tension is between “creating value” through sharing information on interests, and “claiming value”, through determined assertion of positional needs - or between “expanding the pie” and “slicing” it. To share information is to create the potential for exploitation in a tough bargaining environment. The second tension is between empathy and assertiveness , between understanding the other party’s concerns versus pressing to meet one’s own. Good negotiators work with both, but most negotiators err on one side or the other. Attributional error and reactive devaluation are classic psychological correlates of the failure to empathise in negotiation, in turn leading to a further spiral of conflict. The third tension, endemic to legal negotiations, is between principal and agent in the social structure of negotiating relationships. This can lead to diverging interests and incentives, distortions of communication, and further potential for impasse and inefficiency.

The authors discuss these dilemmas in some detail and elaborate on their interplay with legal negotiations and its culture of zero-sum, adversarial, and hired-gun mindsets. The remainder of the book outlines techniques that can help to acknowledge, manage and overcome the tensions, even in the face of hard bargainers.

The final part of the book deals with the special characteristics of organisational and multi-party negotiations, and with the interaction between professional codes and legal negotiation limits. (A more graphic illustration of the book’s theme is provided in a footnoted reference to the fact that the Los Angeles bar found it necessary to introduce a zeal-limiting practice accord, named the Rambo Abatement Program.)

The authors’ work continues the outstanding Harvard Negotiating Program leadership in the field of negotiating theory, captured for a wider public audience in Roger Fisher and William Ury’s early classic, Getting to Yes. That publication provided a missionary call in support of what was then called “principled negotiation”, ushering in an era of demand for Harvard negotiating courses. Mnookin and his colleagues follow this tradition, but limit their attention to (US) legal negotiators and stress the complexity of negotiation dynamics rather than an overarching principle.

On both counts, however, the book loses some of the sharpness of their earlier works. Even for lawyers, tighter editing could have brought out more succinctly the many tips and examples in the book, such as the experimental auction described where the audience are invited to bid for a $20 note, but with the additional rule that the second-top bidder also must hand over their offer. Apparently, the auctioneer has never lost and bidding has risen as high as $150. Thus subjects would often chase a victory and waste further costs rather than settle for an earlier loss, a phenomenon seen daily in litigation.

This is an important further text in a solid stream of works from Harvard on this subject. It remains a puzzle why there are so few other centres of scholarship on what is one of the most important and dynamic areas of human communication.

Karl Mackie is chief executive, centre for dispute resolution, University of Birmingham.