Yesterday DR field titan Carrie Menkel-Meadow (UC-Irvine) contributed to this conversation on the listserv. Cross posting it here for posterity. Enjoy.
If I may be so bold as to say, as one of the “mothers” of integrative bargaining (actually problem solving in my lexicon), anyone who reads my texts (with Andrea Schneider, Lela Love, Jean Sternlight and now Michael Moffitt) or my original 1983, 1984 or later articles (Neg. J.) knows, we teach not just both (but for me 4 different) conceptual models of negotiation (Lax & Sebenius “creating and claiming” is the 3rd—you will have to wait for my next book coming out next year to see the published version of what the 4th is (hint—read a lot of my other work on mediation, deliberative democracy and process pluralism).
As my intellectual mentor, Howard Raiffa taught me, before we negotiate anything we have to analyze the problem, situation (the “science” of the problem, for me the social science of negotiation)—what is at stake (# of issues, # of parties, res being negotiated (thing)-scarce or not), what can the parties do with what they are trying to achieve, what is the context (see my 1983 article in A.B.F.Res. J. for contextual factors that I fold into all teaching of negotiation.—Only after analysis (cognitive parts of negotiation) do we get to the behavioral choices (the “art”) that both in theory and real-life may draw from a wide range of behavioral repertoires that we teach. Good negotiators have to analyze, choose (decision making), act, assess, adapt, reframe and yes be smart enough (and research deeply and interdisciplinarily) to CREATE different kinds of solutions (some based in law—lawyers are legal negotiators, and sometimes drawing from other fields or different materiel or different time frames or getting different parties or experts involved). I have, since I started teaching in the 1970s, always used sequenced over time role plays and simulations with clients (real people not just other students in the class and sometimes me), so I can see first hand how students are conceptualizing problems and offering ideas about both process and outcome and getting feedback from those “clients” about what has worked or not. I suspect that I am the only senior negotiation professor who still does individual feedback for every student from in-time observed negotiations (actually turned out pretty well on all Zoom this term).
There are many kinds of negotiations and I want my students to be analytically rigorous to do what is the best for their clients and those affected by their clients (the moral, ethical and yes, political part of negotiation) and to make things better, not worse (lemonade out of lemons where possible, not always) when they work and represent people or groups. They need to know the differences of many factors in different kinds of negotiations. (I have ranged in my career from poverty law small claims, domestic relations evictions, welfare rights, workers comp, civil rights and discrimination, health care, employment, labor, major class actions, constitutional cases, mass torts, and international major situations (peace talks) so believe me I know that “one size does not fit all.” But if I could not instill some hope in every student to look for how to be creative and “helpful” to any situation and only had to teach distributive negotiation, even for economic efficiency or client desire to “win,” I wouldn’t be doing this (for 45 years now!!).
Roger Fisher and I often used to debate JJ White in many venues (CPR, AALS, other professional CLE) about when and how many integrative or distributive situations there were. I enjoyed those interchanges (a contested empirical question) but as anyone who knows me will see when they read this—binary, debate thinking is not really my cuppa tea. The world is too complex and problematic (especially now) for on/off or vs. thinking—so I teach many “models” or intellectual and discipline based frameworks of negotiation and then focus on what seems appropriate to the complexity of different situations. My courses have always drawn from dispute/litigation AND transactional settings and increasingly are not just dyadic situations but more complex multi-party situations drawn from many subject matters.
End of sermon for now (just taught my penultimate Negotiation class of the semester—I get to do some version of this sermon as final class on Wed.). For me the promise and hope of integrative, “problem solving” negotiation teaching (making things better where possible) is why I do this work– not to produce instrumentally better “competitors”—the rest of law school does plenty of that.
Give thanks for what you can in these times and be well.