Beyond Winning

by Robert H Mnookin

  Work to Change Local Cultural Norms

  Lawyers throughout the profession are exploring the possibility of putting more emphasis on problem-solving both in law schools and at the Bar. Across the country, legislatures and local bar leaders are debating legal reform to prompt lawyers and clients to collaborate more and wage war less. And many different groups advocate for similar changes.5 The civility movement within the Bar is one example. Although lawyers blame clients and each other for promoting the use of Rambo-like legal tactics,6 in many instances lawyers also accept responsibility for the decline in civility within the Bar: in Los Angeles, for example, members of the Bar have created a Rambo Abatement Program where judges are asked to refer hostile attorneys to a peer panel for counseling.7 Collaborative lawyering is another example. Holistic lawyering is a third.8 With foundation support, there is a substantial focus on how legal education might change the legal culture and raise a new generation of attorneys less steeped in adversarial confrontation and more skilled at problem-solving.

  TAKING THE PLUNGE

  It is easy to make the case that our society at large would benefit if lawyers generally adopted a problem-solving orientation to negotiation. For reasons that should be obvious, value would be created. Better deals would be made. Disputes would be resolved at lower cost. More relationships would be preserved. But we are aware that most clients have a narrower focus. In hiring a lawyer, a client is understandably concerned with how large a slice of the pie he receives, not with how much value is created overall. We are often asked by lawyers and law students alike: Will the client always be better off if a skilled lawyer adopts a problem-solving orientation rather than taking a more traditional adversarial approach? Our answer is straightforward: Usually, but not always.

  The outcome of any negotiation depends on the behavior of the parties on both sides. Consider the following thought experiment. Imagine two lawyers—equally skilled—asked to represent the same client. One lawyer has a problem-solving orientation; the other is a hard bargainer. Each lawyer will represent this client in a series of negotiations where there is a random spread of lawyers and clients on the other side. In our view, clients do better, certainly in the long run, when represented by lawyers who have a problem-solving orientation. But common sense and anecdotal observation suggest that in some cases a competitive hard bargainer will achieve a better result for a client than a problem-solver—if the other side is represented by ineffective counsel so eager to settle the dispute or make a deal that he simply offers concession after concession. Adopting a problem-solving stance toward negotiations probably gives up some opportunities to fish for suckers who can be exploited with hard-bargaining tactics. But in large part, how you see this cost of problem-solving will depend on how likely you believe it is that those you negotiate against will be less skilled, intelligent, or sophisticated than you are. Assuming that more often than not those on the other side will be competent, then on average fishing for suckers may have a negative return.9

  Negotiators also fear that by adopting a collaborative posture their clients may be exploited. If I try to lead the way toward problem-solving, will my client be hurt? We think not. With an understanding of hard-bargaining tactics and how they work, an effective problem-solver can defend his client’s interests. Will there be any cost to trying to lead with a problem-solving approach? Perhaps. But in most situations it’s not so hard to change course quickly and take a defensive posture if necessary.

  At the same time, if two problem-solving lawyers work together on opposite sides of the table, sometimes they will be able to create tremendous value for their clients and find outcomes that would simply be unimaginable using a traditional adversarial posture. Two companies in a dispute may realize that they can make millions doing a joint venture. Clients in a deal-making negotiation may find ways to structure a transaction to save on taxes and other peripheral expenses. Even in contentious disputes, problem-solving lawyers may design creative processes to save their clients time and money. While there may be some downside risk to problem-solving, the upside benefit can be well worth it.

  In short, if there is a sucker on the other side and future relationships don’t matter very much, adopting a highly adversarial strategy in either deal-making or dispute resolution may sometimes lead to a higher payoff. More often, it will lead to retaliation, and the net result may be no deal at all or simply much higher transaction costs. In other words, the strategies suggested in this book may not lead to the very best outcome for a client in every situation, but they will lead to outcomes that are better for most clients most of the time.

  We therefore urge lawyers to consider an interest-based, client-centered, collaborative approach as a presumption for their legal negotiations. It may not be the best strategy in all situations—with all clients or all counterparts—but it is a useful orientation to have as a default. Rather than starting a war at the outset, you can begin your legal negotiations by trying to get your clients’ problems solved as efficiently and creatively as possible.

  For Further Information

  In conjunction with this book, we are creating a web site for lawyers, clients, teachers, and students interested in exchanging ideas related to negotiating deals and disputes. Visit us at www.beyondwinning.com to learn more about our ongoing work, interact with others facing similar negotiation issues, or explore Internet resources related to negotiation and dispute resolution.

  Notes

  Introduction

  1. For the first analysis of how lawyers might be problem-solving negotiators, see Carrie Menkel-Meadow, “Toward Another View of Legal Negotiation: the Structure of Problem-Solving,” 31 University of California at Los Angeles Law Review 754 (1984).

  1 The Tension between Creating and Distributing Value

  1. Such an outcome is, by definition, “Pareto optimal” or “Pareto efficient.” Economists have developed a vocabulary, named to honor the Italian Vifredo Pareto, to describe and compare the efficiency of different outcomes, and to suggest the relationship of value creation (and efficiency) to distribution. An outcome is said to be “Pareto efficient” or “Pareto optimal” if one party can be made better off only by making the other party worse off. Economics teaches that there is a Pareto frontier consisting of various Pareto optimal outcomes that have different distributive consequences for the parties. See Hal R. Varian, Intermediate Microeconomics: A Modern Approach, p. 15 (1987). The notion of creating value builds on a long established tradition in the negotiation literature acknowledging the “integrative” possibilities present in some negotiations. See Mary Parker Follett, Dynamic Administration: The Collected Papers of Mary Parker Follett (Henry Clayton Metcalf and L. Urwick, eds., 1942); Richard E. Walton and Robert B. McKersie, A Behavioral Theory of Labor Negotiatons: An Analysis of a Social Interaction System (1965) (describing the concept of “integrative” agreements). See also Dean G. Pruitt, Negotiation Behavior, pp. 137–162 (1981); Howard Raiffa, The Art and Science of Negotiation (1982); David A. Lax and James K. Sebenius, The Manager as Negotiator: Bargaining for Cooperation and Competitive Gain, pp. 88–116 (1986); Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating Agreement without Giving in (2d ed. 1991).

  2. For the important role of differences in creating value, see Lax and Sebenius, The Manager as Negotiator, pp. 90–106.

  3. This story is attributed to Follett and was popularized by Fisher, Ury, and Patton. See Follett, Dynamic Administration; Fisher, Ury, and Patton, Getting to Yes, p. 57.

  4. See Robert H. Mnookin, “Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict,” 8 Ohio State Journal on Dispute Resolution 235, 240– 41 (1993).

  5. See Fisher, Ury, and Patton, Getting to Yes, p. 100. The term has gained wide acceptance in the negotiation literature. See, e.g., Max H. Bazerman and Margaret A. Neale, Negotiating Rationally, pp. 67–68 (1992).

  6. Lax and Sebenius suggest that the decision to make the first offer should depend
in part on how much information you have about the other party’s reservation value. Where you have fairly good information, it probably makes sense to make the first offer to anchor expectations. Where you lack such information, it may be to your advantage to let the other party go first. See Lax and Sebenius, The Manager as Negotiator, pp. 132–133. See also James C. Freund, Smart Negotiating: How to Make Good Deals in the Real World, pp. 114–115 (1992) (suggesting that you should make the first offer where you have good information about the valuation of the asset you intend to purchase).

  7. See Lax and Sebenius, The Manager as Negotiator, p. 125. See also Thomas C. Schelling, The Strategy of Conflict (1960).

  8. See Bazerman and Neale, Negotiating Rationally, p. 52 (“The . . . paradox lies in the high likelihood that the target will accept the acquirer’s offer when the [good in question] is least valuable to the acquirer—i.e., when it is a ‘lemon.’”). See also George A. Akerlof, “The Market for ‘Lemons:’ Quality Uncertainty and the Market Mechanism,” 84 Quarterly Journal of Economics 488 (1970). Parties often have asymmetrical information about the quality of the goods to be traded. See generally Daniel R. Vincent, “Bargaining with Common Values,” 48 Journal of Economic Theory 47 (1989). Likewise, litigating parties often have very different information about the expected value of their case, and the potential outcome of going to court. See Kathryn E. Spier, “The Dynamics of Pretrial Negotiation,” 59 Review of Economic Studies 93, 94 (1992); Lucian A. Bebchuk, “Litigation and Settlement under Imperfect Information,” 15 Rand Journal of Economics 404 (1984).

  9. Lax and Sebenius, The Manager as Negotiator, p. 30, characterize as the “negotiator’s dilemma” the “central, inescapable tension between cooperative moves to create value jointly and competitive moves to gain individual advantage.”

  10. See Fisher, Ury, and Patton, Getting to Yes.

  2 The Tension between Empathy and Assertiveness

  1. The notion of empathy “is, and always has been, a broad, somewhat slippery concept—one that has provoked considerable speculation, excitement, and confusion.” Nancy Eisenberg and Janet Strayer, “Critical Issues in the Study of Empathy,” in Empathy and Its Development, p. 3 (Nancy Eisenberg and Janet Strayer, eds., 1987). The term is of comparatively recent origin. It was coined by an American experimental psychologist in 1909 as a translation of the German word Einfühlung, defined as “to feel one’s way into.” Lauren Wispé, “History of the Concept of Empathy,” in Eisenberg and Strayer, Empathy and Its Development, pp. 17, 20–21. Over the last 80 years, many sub-disciplines in psychology adopted and modified the term, giving it a range of definitions and connotations. Contemporary scholars debate such issues as whether the content of empathy is cognitive or affective—whether we understand the thoughts, intentions, and feelings of others or contemporaneously experience them. Similarly, scholars question whether the empathic process is primarily cognitive—thinking it through—or affective—feeling it through. See Janet Strayer, “Affective and Cognitive Perspectives on Empathy,” in Eisenberg and Strayer, Empathy and Its Development, pp. 218–244.

  2. See Carl R. Rogers, A Way of Being, pp. 142–143 (1980).

  3. Heinz Kohut, “Introspection, Empathy, and The Semicircle of Mental Health,” in 1 Empathy, pp. 81, 84 (Joseph Lichtenberg, Melvin Bornstein, and Donald Silver, eds., 1984).

  4. See generally Keithia Wilson and Cynthia Gallois, Assertion and Its Social Context, pp. 1–38 (1993) (exploring various definitions of “assertiveness” and distinguishing assertiveness from aggression and submission).

  5. See Erica L. Fox, “Alone in the Hallway: Challenges to Effective Self-Representation in Negotiation,” 1 Harvard Negotiation Law Review 85 (1996).

  6. See Robert Alberti and Michael Emmons, Your Perfect Right: A Guide to Assertive Living (7th ed. 1995).

  7. See Margaret A. Neale and Max H. Bazerman, “The Role of Perspective-Taking Ability in Negotiating under Different Forms of Arbitration,” 36 Industrial and Labor Relations Review 378 (1983); Jonathan A. Margolis, “The Ability to Perceive the Other Party’s Perspective across Different Negotiation Structures,” (Ph.D. diss., Harvard University, 1991).

  8. See, e.g., Lee Ross, “Reactive Devaluation in Negotiation and Conflict Resolution,” in Barriers to Conflict Resolution, pp. 27–33 (Kenneth Arrow, Robert H. Mnookin, Lee Ross, Amos Tversky, and Robert Wilson, eds., 1995); Dale W. Griffin and Lee Ross, “Subjective Construal, Social Inference, and Human Misunderstanding,” 24 Advances in Experimental Social Psychology 319 (1991).

  9. See, e.g., Michael P. Nichols, The Lost Art of Listening, p. 10 (1995).

  10. There is a substantial, and not altogether consistent, scholarly literature in the field of communications, comparing one and two-sided messages and trying to develop the reasons two-sided messages are generally more persuasive. See generally Daniel J. O’Keefe, “How to Handle Opposing Arguments in Persuasive Messages: A Meta-Analytic Review of the Effects of One-Sided and Two-Side Messages,” Communication Yearbook, Volume 22, pp. 209–249 (Michael E. Roloff, ed., 1999).

  11. There is considerable literature related to these three categories, and scholars disagree over what exactly these categories describe, using words such as styles, strategies, intentions, behaviors, modes, and orientations. Early business management literature taxonomized managerial styles. See Robert R. Blake and Jane S. Mouton, The Managerial Grid: Key Orientations for Achieving Production through People (1964). Social and industrial psychologists subsequently introduced taxonomies of styles for dealing with conflict. See, e.g., Alan C. Filley, Interpersonal Conflict Resolution (1975); Kenneth Thomas, “Conflict and Conflict Management,” in Handbook of Industrial and Organizational Psychology, pp. 889–935 (Marvin D. Dunnette, ed., 1976); M. Afzalur Rahim, “A Measure of Styles of Handling Interpersonal Conflict,” 26 Academy of Management Journal 368–376 (1983); Jeffrey Z. Rubin, Dean G. Pruitt, and Sung Hee Kim, Social Conflict: Escalation, Stalemate, and Settlement, pp. 28–29 (2d ed. 1994). The Thomas-Kilmann Conflict Mode Instrument utilizes a pencil and paper test to differentiate five conflict tendencies: in addition to competing, accommodating and avoiding, it also identifies compromising (some assertion and some empathy) and problem solving (full assertion and full empathy). See Kenneth Thomas, “Interpreting Your Scores on the Thomas-Kilmann Conflict Mode Instrument” (1974).

  There is certainly no consensus about these terms. The ambiguity in the models centers around three questions. First, do the models describe behaviors/tactics or intentions? Compare Thomas, “Conflict and Conflict Management” (referring to the “styles” as strategic intentions and distinguishing them from tactics such as lock-ins and bluffing) with Evert van de Vliert and Hugo C. M. Prien, “The Difference in the Meaning of Forcing in the Conflict Management of Actors and Observers,” in Managing Conflict: An Interdisciplinary Approach (M. Afzalur Rahim, ed., 1989) (reviewing research linking the “styles” to observable behavior). Second, are the models taxonomies, or causal models that explain why negotiators use certain styles at different times? Compare Filley, Interpersonal Conflict Resolution (introducing the “styles” as a taxonomy of conflict behavior) with Rubin, Pruitt, and Kim, Social Conflict (explaining that the “styles” are strategies whose choice is explained by a negotiator’s relative concerns about his own outcome and the other side’s, which in turn can be explained by a variety of situational factors). Third, do the models posit that “styles” are generalizable or that situational factors are more important? Compare Rubin, Pruitt, and Kim, Social Conflict (situational factors) with Thomas, “Conflict and Conflict Management.” Thomas sums up nicely: “[R]esearchers . . . have often missed the distinction between taxonomies and causal models, using the dual concerns models as though they were only taxonomies. They have also confused the individual styles models with the situational models . . . The strategic intentions are also often called styles, even by researchers who discuss situational influences. In general, there is a need for much greater precision in the use of
these models.” Thomas, “Conflict and Conflict Management,” p. 894.

  Our purpose here is not to settle these debates about definitions but instead to use these categories to highlight the usefulness of the empathy-assertiveness framework.

  12. To introduce the empathy/assertiveness framework in our negotiation workshops, we use the Thomas-Kilmann Conflict Mode Instrument. This multiple choice test requires respondents to choose statements that best describe their tendencies in the face of conflict, and it can be scored in a way that permits students to identify their relevant tendencies and categories that track competing, accommodating, and avoiding. Initially in small groups, and later with the whole class, we explore these categories, asking students to consider whether they capture aspects of their own behavior. We also discuss the advantages and disadvantages of each style, and ask students to begin to identify particular interpersonal skills that would augment their existing negotiation repertoire.

  We go to considerable lengths to avoid using the categories to label people, emphasizing that the test has not been behaviorally validated and is at best an illuminating distortion. Although some research suggests that people exhibit reasonably consistent styles, see, e.g., Robert J. Sternberg and Diane M. Dobson, “Resolving Interpersonal Conflicts: An Analysis of Stylistic Consistency,” 52 Journal of Personality and Social Psychology 794 (1987); Robert J. Sternberg and Lawrence J. Soriano, “Styles of Conflict Resolution,” 47 Journal of Personality and Social Psychology 115 (1984), it is uncontestable that context matters. The test does not take into account important situational variables. Nevertheless, we find the Mode Instrument a useful teaching tool, which we use to highlight the lesson that, through coaching and practice, students can shed dysfunctional negotiation habits and add new skills.