Debra Berman wrote Is Our Over-Emphasis on Integrative Negotiation Pedagogy Falling Short of Reality?, which prompted responses by Art Hinshaw and Carrie Menkel-Meadow as well as others on the DRLE listserv.

My answer to Debra’s question is that our over-emphasis on integrative negotiation pedagogy does fall short of reality.  We know that much – probably most – negotiation and mediation of civil cases these days in the US involves a counteroffer process where lawyers focus almost exclusively on allocating money based on a zero-sum assumption.  So if our courses focus too much on interests-and-options processes, students get a misimpression about the frequency of what happens in the real world.

The problem, in my view, is that the problem is not just the over-emphasis but the concept of integrative negotiation itself.

In earlier days of theorizing, this concept represented a helpful advance.  These days, many people recognize that it is problematic.  Here’s an excerpt from a summary of the Tower of Babel symposium:

In addition to Rishi Batra‘s and Rafael Gely’s contributions in this symposium on this subject, Andrea Schneider argues that the integrative and distributive “labels” are confusing, repetitive, and simultaneously underbroad and overbroad, and that they conflate general negotiation approaches and specific negotiation tasks without explaining the skills needed to perform the tasks.  James Sebenius critiques the integrative-distributive “folklore” of negotiation, which confuses issues (such as the division of money, which is not inherently distributive or integrative) with negotiators’ behavior in seeking joint gains or not.  Moreover, he notes that reference to distributive and integrative “models” gives the false impression that they are distinct and coherent models.   I compared conceptions of the two traditional negotiation models as described in law school negotiation texts with descriptions of actual negotiations and found the theoretical definitions sometimes didn’t fit the cases I studied.

A review of negotiation texts shows that theoretical negotiation models generally assume that parties’ goals, assumptions, attitudes toward counterparts, types of norms used, communication process, and use of power are tightly bundled.

“Distributive” negotiations generally are considered to focus on arguments about expected outcomes such as a trial verdict, whereas “integrative” negotiations are considered to focus on intangible interests.

In fact, parties may consider both elements in virtually any negotiation, as suggested in Beyond Winning and the LIRA book.

Consider two negotiations to illustrate the problem with the concepts of “integrative” and “distributive” negotiation.

Dwight Golann shared one of his great videos, which shows a negotiation between two lawyers in a case about termination of employment.  They politely exchanged a series of offers including terms about making payments over time and providing the employee a temporary consulting arrangement.  As Dwight notes, the case involves elements of both integrative and distributive negotiation, so these models are not mutually exclusive.  As Sebenius points out, this case is not inherently integrative because the lawyers could negotiate quite differently than in the video.  For example, they could exchange offers dealing only with payment of a lump sum, bang on the table, and use all sorts of tactics to pressure each other.

Here’s an actual case from my study of settled cases.

[A] husband in a divorce was concerned about the welfare of his wife and children and not merely maximizing his own financial situation. The lawyers discussed the parties’ interests, which presumably helped them negotiate. Although the lawyers started on a “good footing” with each other, the parties were very anxious about the financial arrangements and filed motions for temporary court orders to govern the situation while the case was pending.  Both lawyers tried to focus their clients on negotiation, and they reached an agreement on temporary issues without a hearing.  Before reaching an agreement, the parties exchanged three to five offers dealing with varying combinations of the amount and length of maintenance and responsibility for the debts.

Is this an example of an [interest-based negotiation] process?  On one hand, the lawyers discussed the parties’ interests and the husband was concerned about the wife’s welfare to some extent.  On the other hand, the parties apparently had a tense relationship during the process and reached agreement only after a considerable exchange of offers.  What would make the process clearly positional or interest-based?  Would it matter if satisfying both parties’ interests was the primary consideration in the negotiation?  What difference does it make that the lawyers apparently were focused on satisfying both parties’ interests but the parties themselves may have had much less concern for each other?  Would it make a difference if only one party was concerned about the other’s interest?  Is a critical factor what the negotiators thought or said when they exchanged offers?  For example, would it matter if the negotiators crafted their offers to maximize their side’s gain (hoping that their offers would be the bare minimum needed to get the other side to accept) or to accommodate the other side’s real interests?  Although it might be easy to distinguish these two motivations in some negotiations, in many cases, it would be hard to separate them.  Does it matter how much of the negotiation involved an exchange of offers? … Would it have made a difference if the negotiators considered a range of options instead of exchanging offers?  Would it have made a difference if the agreement “created value” for the parties?

We would do much better if we focus on how and when negotiators deal with concrete elements of negotiation, not assuming that they are bundled into models.  In other words, we would benefit by unbundling and un-Babeling our models.

Teaching Negotiation

Part of the problem is our reliance on short simulations, where it is hard to convey the rich set of interests and relationships in actual cases.  The Building a Better Bar study quoted a lawyer saying that in law school, “they give you a set of facts” and “those are the only facts that exist in the world.”

In real life, negotiation dynamics depend on the particular lawyers’ and clients’ approaches and interactions.  In short simulations, students have difficulty absorbing a realistic context and reacting accordingly.  This may help explain why some students don’t recognize the potential to focus on parties’ interests and create value.  When faculty use longer simulations – and especially simulations with students playing clients, students also can incorporate relationship dynamics flowing from the negotiation itself.

Of course, simply providing a longer period to do a simulation will not necessarily cause students to be more creative and effective, as Debra’s practicum illustrates.  Providing better theory might help.

Many of us are hooked on teaching our favorite folklore, and don’t want to wean ourselves from it.  It is incoherent and confusing, so it is not surprising when some students are confused and upset with our simulations.  Some colleagues use alternative approaches that may better reflect reality and work better in their courses.