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Lawyer Negotiation Theory Practice and Law 3rd
Edition Jay Folberg Digital Instant Download
Author(s): Jay Folberg
ISBN(s): 9781454852063, 1454852062
Edition: 3
File Details: PDF, 2.87 MB
Year: 2016
Language: english
Lawyer Negotiation

2
EDITORIAL ADVISORS

Erwin Chemerinsky
Dean and Distinguished Professor of Law
Raymond Pryke Professor of First Amendment Law
University of California, Irvine, School of Law

Richard A. Epstein
Laurence A. Tisch Professor of Law
New York University School of Law
Peter and Kirsten Bedford Senior Fellow
The Hoover Institution
Senior Lecturer in Law
The University of Chicago

Ronald J. Gilson
Charles J. Meyers Professor of Law and Business
Stanford University
Marc and Eva Stern Professor of Law and Business
Columbia Law School

James E. Krier
Earl Warren DeLano Professor of Law
The University of Michigan Law School

Richard K. Neumann, Jr.

Professor of Law
Maurice A. Deane School of Law at Hofstra University

Robert H. Sitkoff
John L. Gray Professor of Law
Harvard Law School

David Alan Sklansky

Stanley Morrison Professor of Law, Stanford Law School
Faculty Co-Director, Stanford Criminal Justice Center

3
 Lawyer Negotiation
Theory, Practice, and Law
Third Edition

Jay Folberg
Professor and Dean Emeritus
University of San Francisco School of Law

Dwight Golann
Professor and Director, Center for Representation in Dispute Resolution
Suffolk University Law School

4
Copyright © 2016 CCH Incorporated.

Published by Wolters Kluwer in New York.

Wolters Kluwer Legal & Regulatory US serves customers worldwide with CCH, Aspen Publishers, and Kluwer Law International products.
(www.WKLegaledu.com)

No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy,
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department at 212-771-0803.

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to:

Wolters Kluwer
Attn: Order Department
PO Box 990
Frederick, MD 21705

Library of Congress Cataloging-in-Publication Data

Names: Folberg, Jay, 1941- author. | Golann, Dwight, author.

Title: Lawyer negotiation : theory, practice, and law / Jay Folberg, Dwight Golann.
Description: Third edition. | New York : Wolters Kluwer, [2016] | Includes index.
Identifiers: LCCN 2015044567 | eISBN: 978-1-4548-7601-4
Subjects: LCSH: Negotiation — United States. | Dispute resolution (Law) — United States.
Classification: LCC KF9084 .F65 2016 | DDC 347.73/9--dc23
LC record available at http://lccn.loc.gov/2015044567

5
About Wolters Kluwer Legal & Regulatory US
Wolters Kluwer Legal & Regulatory US delivers expert content and solutions in the areas of law, corporate
compliance, health compliance, reimbursement, and legal education. Its practical solutions help customers
successfully navigate the demands of a changing environment to drive their daily activities, enhance decision
quality and inspire confident outcomes.

Serving customers worldwide, its legal and regulatory portfolio includes products under the Aspen Publishers,
CCH Incorporated, Kluwer Law International, ftwilliam.com and MediRegs names. They are regarded as
exceptional and trusted resources for general legal and practice-specific knowledge, compliance and risk
management, dynamic workflow solutions, and expert commentary.

6
 To my father, Lew Folberg, the pawn broker who taught me the art of negotiation
— J.F.
To my father, Herbert Goldberg, whose inventiveness in other fields has inspired my work
— D.G.

7
 SUMMARY OF CONTENTS

Contents
Preface
Acknowledgments

Chapter 1: Negotiation and Conflict

Chapter 2: Perception, Fairness, Psychological Traps, and Emotions
Chapter 3: Competitive and Cooperative Negotiation
Chapter 4: Selecting a Negotiation Style and Combining Approaches
Chapter 5: Negotiation Step by Step — The Beginning
Chapter 6: Negotiation Step by Step — The Middle
Chapter 7: Negotiation Step by Step — The End
Chapter 8: Telephone and Cyber Negotiation
Chapter 9: Gender, Culture, and Race
Chapter 10: Negotiation Ethics
Chapter 11: The Law of Negotiation
Chapter 12: Obstacles to Agreement and Mediation Assistance
Chapter 13: Negotiating in a Mediation
Chapter 14: Negotiation Limits and Settlement Policy

Appendix
References
Table of Cases
Index

8
 CONTENTS

Preface
Acknowledgments

CHAPTER 1
NEGOTIATION AND CONFLICT

A. Introduction to Negotiation
B. Conflict
C. Ripeness
D. The Triangle of Conflict and Negotiation
Negotiation as a Healing Process — Gerald R. Williams

CHAPTER 2
PERCEPTION, FAIRNESS, PSYCHOLOGICAL TRAPS, AND EMOTIONS

A. The Role of Perceptions

Rashoman Effect
The Conflict Helix — R.J. Rummel
B. Heuristics — Thinking Fast and Slow
The Myth of Professional Objectivity
C. The Impact of Fairness
The Home-Run Ball Catch
Perceptions of Fairness in Negotiation — Nancy A. Welsh
D. The Role of Emotions and Emotional Intelligence
The Emotionally Attentive Lawyer: Balancing the Rule of Law — Randall Kiser
Interpersonal Dynamics: Helping Lawyers Learn the Skills, and the Importance, of Human
Relationships in the Practice of Law — Joshua D. Rosenberg
Neuroscience and Negotiation

CHAPTER 3
COMPETITIVE AND COOPERATIVE NEGOTIATION

Microsoft v. Stac
A. Competitive/Adversarial Approach
1. Competitive Approach
A Primer on Competitive Bargaining — Gary Goodpaster

9
 2. Adversarial Approach
Note: Responses to Competitive Hardball and Difficult People
B. Cooperative/Problem-Solving Approach
1. Cooperative Approach
Note: Positions vs. Interests
2. Problem-Solving Approach
Toward Another View of Legal Negotiation: The Structure of Problem Solving — Carrie Menkel-
Meadow
Pros and Cons of “Getting to YES” — James J. White; and Comment on White’s Review — Roger
Fisher
C. Creating Value and Claiming Value — The Negotiator’s Dilemma
Problem: Jack Sprat
Differences Can Create Joint Gains

CHAPTER 4
SELECTING A NEGOTIATION STYLE AND COMBINING APPROACHES

A. Effectiveness and Style

The Inherent Tension Between Value Creation and Value Claiming During Bargaining — Charles
B. Craver
B. Negotiating Within Your Comfort Zone
‘‘I See a Pattern Here and the Pattern Is You’’: Personality and Dispute Resolution — Sheila Heen
& John Richardson
The Limits of Integrative Bargaining — Gerald B. Wetlaufer
C. Cooperation vs. Competitiveness — Who Decides?
Ends vs. Means

CHAPTER 5
NEGOTIATION STEP BY STEP — THE BEGINNING

A. Negotiation Stages and Approaches

B. Getting Ready to Negotiate
1. Preparation
A Positive Theory of Legal Negotiation — Russell Korobkin
2. Setting Goals
Bargaining for Advantage: Negotiation Strategies for Reasonable People — G. Richard Shell
3. Negotiation Preparation Checklist
Note: Web and Computer-Assisted Preparation
C. Initial Interaction
1. Trust
Note: The Handshake that Shook the Western Hemisphere
Note: Rapport and Reciprocity

10
D. Exchanging and Refining Information
1. Listening, Observing, and Questioning
A Woman’s Guide to Successful Negotiating — Lee E. Miller & Jessica Miller
2. Managing Information
Negotiation: Theory and Practice — Melissa L. Nelken
E. Opening Demands and Offers
Legal Negotiation — Gerald R. Williams & Charles Craver
F. To Make the First Offer or Not

CHAPTER 6
NEGOTIATION STEP BY STEP — THE MIDDLE

A. Bargaining
1. Planning and Managing Concessions
2. Value-Creating Trades and Brainstorming
Beyond Winning: Negotiating to Create Value in Deals and Disputes — Robert H. Mnookin,
Scott R. Peppet & Andrew S. Tulumello
3. Multiparty Bargaining — Coalitions and Holdouts
The Lawyers: Class of ’69 — John M. Poswall
B. Moving Toward Closure
1. The Role of Power and Commitment
Negotiating Power: Getting and Using Influence — Roger Fisher
Note: Irrational Threats, Absolute Commitments, and Perception of Power
The Wizard and Dorothy, Patton and Rommel: Negotiation Parables in Fiction and Fact — H.
Lee Hetherington
2. Deadlines and Final Offers
Civil Warrior: Memoirs of a Civil Rights Attorney — Guy T. Saperstein
Note: The Effect of Scarcity and Deadlines
3. Decision Tree Analysis
Decision Trees — Made Easy — Richard Birke
Note: The Problem with Risk Analysis and Decision Trees

CHAPTER 7
NEGOTIATION STEP BY STEP — THE END

A. Impasse or Agreement
1. Apologies
Apologies and Legal Settlement: An Empirical Examination — Jennifer K. Robbennolt
Note: Evidentiary Consequences of Apologies
2. Splitting the Difference and Leaving the Door Open
Bargaining for Advantage: Negotiation Strategies for Reasonable People — G. Richard Shell
3. Logrolling and Packaging

11
 4. Agree to Disagree: Contingent Agreements
Contingent Agreements: Agreeing to Disagree About the Future — Michael Moffitt
5. Realistically Reconsider and Adjust BATNAs and WATNAs
6. Decision Fatique, Glucose, and the Nirvana Fallacy
7. Win with a Shrug, Lose with a Smile
B. Finalizing and Writing the Agreement
1. Release of Claims
2. Structured Settlements
3. Ratification
4. Single Text Agreements
5. Memorializing the Agreement
Effective Legal Negotiation and Settlement — Charles B. Craver

CHAPTER 8
TELEPHONE AND CYBER NEGOTIATION

A. Negotiating by Telephone and Video Communication

Take the Deal!
B. E-Mail and Text Message Negotiation
Negotiation via (the New) Email — Noam Ebner
Rapport in Legal Negotiation: How Small Talk Can Facilitate E-Mail Dealmaking — Janice
Nadler
Note: Avoiding Costly E-Mail Mistakes
C. Computer-Based Negotiation Assistance and Online Dispute Resolution
Lawyer Negotiation Meets High Tech

CHAPTER 9
GENDER, CULTURE, AND RACE

A. Moving Beyond Gender Stereotypes

Gender: An (Un)Useful Category of Prescriptive Negotiation Analysis — Amy Cohen
Note: Good News
The Impact of Gender on Negotiation Performance — Charles B. Craver
B. Cultural Differences, or Why the World Is Not Boring
Caveats for Cross-Border Negotiations — James K. Sebenius
Note: Research on Culture and Negotiation
Culture and Negotiation Processes — Wendy L. Adair & Jeanne M. Brett
C. Is Race a Factor in Negotiations?

CHAPTER 10
NEGOTIATION ETHICS

A. Deception vs. Disclosure

12
 Doing the Right Thing: An Empirical Study of Attorney Negotiation Ethics — Art Hinshaw &
Jess K. Alberts
Beyond Winning: Negotiating to Create Value in Deals and Disputes — Robert H. Mnookin,
Scott R. Peppet & Andrew S. Tulumello
Ethics in Settlement Negotiations: Foreword — Patrick E. Longan
B. Client Control vs. Lawyer Integrity (Conflicts of Interest)
C. Fee Arrangements and Settlement
D. Good Faith vs. Threats, Exposure, and Coercion
When David Meets Goliath: Dealing with Power Differentials in Negotiations — Robert S. Adler
& Elliot M. Silverstein
E. Ethics Reform and New Forms of Practice
1. Reform Proposals and Guidelines
2. Collaborative Law, Cooperative Practice, and Mindfulness
Mindfulness in the Law and ADR: Can Saints Negotiate? — Scott R. Peppet

CHAPTER 11
THE LAW OF NEGOTIATION

A. How Law Impacts Negotiation

B. Common-Law Limits — Fraud, Misrepresentation, and Duress
The Law of Bargaining — Russell Korobkin, Michael Moffett & Nancy Welsh
C. FRE 408 and Mediation Confidentiality
D. Offers of Settlement and Fee Shifting
1. The American Approach
2. Rule 68 and Its Application
BMW of North America, Inc. v. Krathen
Marek v. Chesny
Note: Does FRCP 68 Create More Risk Taking Rather Than Less?
E. Mary Carter Agreements
F. Tax Considerations
Taxing Matters in Settling Cases — Robert W. Wood
G. Negotiation Malpractice
Note: Gravamen of Malpractice
Ziegelheim v. Apollo
Post-Settlement Malpractice: Undoing the Done Deal — Lynn A. Epstein
Note: Preventing Negotiation Malpractice

CHAPTER 12
OBSTACLES TO AGREEMENT AND MEDIATION ASSISTANCE

A. Obstacles
Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict — Robert H.

13
 Mnookin
B. Negotiation Assistance and Other Alternatives
C. Mediation
1. What Is Mediation?
2. What Do Mediators Do?
3. What Is the Structure of Mediation?
a. Pre-Mediation
b. The Opening Session
c. Private Caucusing
d. Joint Discussions
e. Follow-Up Contacts
f. Variations in Format
Note: An Example of Mediation in Aid of Negotiation
4. Goals for the Process
a. Resolve a Claim in Litigation on the Best Possible Monetary Terms
b. Develop a Broad, Interest-Based Resolution
c. Repair the Parties’ Relationship
d. Choices Among Goals
5. Mediator Styles
a. Classifying Styles
Mediator Orientations, Strategies and Techniques — Leonard L. Riskin
b. Do Mediators Have a Single Style?
6. Mediation Techniques to Overcome Negotiation Obstacles
a. Build a Foundation for Settlement
b. Allow Participants to Argue and Express Feelings
c. Moderate the Bargaining and Offer Coaching
d. Seek Out and Address Hidden Issues
e. Test the Parties’ Alternatives; If Necessary, Evaluate the Adjudication Option
f. Break Bargaining Impasses
7. “Deal Mediation”
Contract Formation in Imperfect Markets: Should We Use Mediators in Deals? — Scott R. Peppet
D. Judicial Settlement Conferences and Court ADR Programs
1. Judge-Led Settlement Conferences
2. Court ADR Programs

CHAPTER 13
NEGOTIATING IN A MEDIATION

A. Introduction
How Advocacy Fits in Effective Mediation — Jeffrey G. Kichaven
B. When to Mediate

14
 C. How to Initiate the Process
D. Preparing to Mediate
Twenty Common Errors in Mediation Advocacy — Tom Arnold
E. Selecting a Mediator
Strategic Considerations in Choosing a Mediator: A Mediator’s Perspective — David S. Ross
F. Consideration of Who Should Be Present, the Format, and Court-Connected Mediation
1. Ensuring the Presence of Necessary Participants
2. Influencing the Format
3. Planning for Court-Connected Mediation
G. Preparing to Mediate
1. Developing a Negotiating Plan for Use in Mediation
2. Exchanging Information
3. Preparing the Client
4. Educating the Mediator
H. Representing Clients During the Process
1. Joint Meetings
The Opening Session
2. Caucusing
a. Early Caucuses
b. Later Caucuses
I. Conclusion

CHAPTER 14
NEGOTIATION LIMITS AND SETTLEMENT POLICY

A. Should You Always Negotiate?

Bargaining with the Devil: When to Negotiate, When to Fight — Robert Mnookin
B. Is Settlement of Legal Disputes Desirable?
Against Settlement — Owen Fiss
Three Things to Be Against (“Settlement” Not Included) — Michael Moffitt
C. Judicial Encouragement of Settlement
Note: Compelled Participation and Good-Faith Bargaining
D. Court Approval of Negotiated Settlements
Note: Class Settlement Fairness and Objectors
E. A New Role for Lawyers — Settlement Counsel and Collaborative Law
Why Should Businesses Hire Settlement Counsel? — Kathy A. Bryan

Appendix
References
Table of Cases
Index

15
16
 PREFACE

This book is based on three key assumptions: First, to represent clients effectively, lawyers must be skilled
negotiators. Second, lawyer negotiation differs from direct negotiation between parties because lawyers are
professional agents representing clients and therefore have unique responsibilities and potential conflicts.
Finally, a negotiation textbook should be interesting to read; bring together the latest, best, and most
provocative writing on negotiation; and lend itself to interactive teaching.
Our book, therefore, has a different perspective from most other texts on negotiation. It focuses on legal
negotiation — the settling of substantial legal claims in which the disputants are represented by attorneys.
Although the emphasis is on negotiating settlements of disputes, negotiation of deals and transactions is also
covered. This book includes a chapter on obstacles to reaching agreements and assisted negotiation. Another
chapter covers how to negotiate in a mediation. The reality is that lawyers now regularly use mediation to
conclude difficult negotiations of litigated disputes and need to understand how mediation works and how to
use it as an advantageous negotiation tool to best meet their clients’ needs. Most students enrolling in a
negotiation course will not take a separate mediation course, and if they do it may focus on how to be a
mediator rather than an advocate in the process, as emphasized here. This book concludes with a chapter that
asks if there are situations in which you should not negotiate and examines settlement policy.
The text is practical while grounded in theory, and lawyer-focused but also enriched by interdisciplinary
material. This book asks many questions and poses problems designed to provoke critical thinking about the
readings and stimulate class discussion. Accompanying role-plays and exercises provided in the Teacher’s
Manual allow students to apply the readings and bring the text material to life. These role-plays center on the
types of disputes in which students are likely to find themselves as practicing lawyers — cases with legal claims
or issues, rather than purely personal conflicts or neighborhood quarrels.
This third edition of Lawyer Negotiation follows the same organization that proved popular in prior editions
and contains the same core elements. We have updated some of our narrative and included excerpts from the
most recent writings on negotiation. Readings have been carefully edited to keep the material interesting and
lively. Additional notes and examples extend the topic coverage, including game theory, heuristics,
psychological traps, the role of emotions, decision analysis, neuroscience, computer software and apps,
apologies, collaborative law and mindfulness. We also take advantage of technology, and of students’
increasing preference for electronic and video formats. Items that have traditionally gone into a paper
appendix now appear on the book’s Web site. This makes this book easier to carry without sacrificing depth,
allows readers to download specific codes or standards for discussion. The Web site also provides streaming
videos of negotiations and mediations to illustrate some of the points and techniques presented in the
readings.

17
 The book’s fourteen chapters are designed for a semester course with readings assigned before class so that
class time can be devoted to exercises, role-plays, and discussion. The first chapter explores the nature of
conflict and the second the role of perceptions and settlement psychology. We then analyze in chapter 3 both
competitive and cooperative negotiation, and in chapter 4 provide help in combining the approaches and
choosing a comfortable style. After setting out an analytic structure to help students make sense of negotiation
and understand styles, we offer in chapters 5 through 7 a step-by-step explanation and comparison. The
negotiation process and outcome-enhancing skills are covered in these three chapters, which provide
instruction from preparation through writing the agreement. Following a chapter on telephone and cyber
negotiation, students are guided in chapter 9 to explore issues of gender, culture, and race. Chapters 10 and 11
then examine negotiation ethics and the law of negotiation. Obstacles to negotiation and the role of mediation
are reviewed in chapter 12, and how to most effectively negotiate in mediation is then presented in chapter 13.
Finally, in chapter 14, there is an exploration of negotiation limits and policy.
A note about form: To focus discussion and conserve space, we have substantially edited the readings and
have deleted most footnotes, references, and case citations. Deletions of material are shown by three dots or
ellipses, but omitted footnotes and other references are not indicated. Cited authority in the text usually
appears only by author’s last name and year of publication, with a full citation found in the list of references.
This book is the culmination of our combined decades of teaching and training negotiation in legal
contexts. Although our acknowledgments follow, we are especially grateful to the many students and lawyers
whom we have had the pleasure of teaching negotiation and from whom we have learned much about what
works in a negotiation class. We are also thankful to the professors who have suggested corrections and
improvements for this new edition.

January 2016
J.F.
D.G.

18
 ACKNOWLEDGMENTS

This negotiation book has evolved from our comprehensive ADR course book, Resolving Disputes:
Theory, Practice, and Law, which we wrote with Thomas Stipanowich and Lisa Kloppenberg. Although this
book has grown to become a text of its own with multiple editions, it would not exist without Tom’s and
Lisa’s encouragement. We are grateful for their continuing collaboration.
We are thankful for the resources and assistance we have each received from the staffs and librarians of the
law schools at the University of San Francisco and Suffolk University. The assistance of USF law student
Minh Le and Berkeley law student Justine Kentla has been particularly helpful. Special thanks also go to the
professors who suggested corrections and improvements for this third edition.
We are most grateful to all the students and lawyers whom we have trained and worked with in negotiation
and mediation. They have inspired us and guided what we have selected here to present to the next generation
of lawyers.
Finally, we are indebted to the many authors and publishers who have granted their permission for us to
edit and include parts of their publications. More specifically, we thank the following sources for permission
to publish excerpts of their work:
Finally, we are indebted to the many authors and publishers who have granted their permission for us to
edit and include parts of their publications. More specifically, we thank the following sources for permission
to publish excerpts of their work:

Adair, Wendy, L. and Jeanne M. Brett, “Culture and Negotiation Process” in The Handbook of
Negotiation and Culture by M. Gelfand and J. Brett, eds. Copyright © 2004 M. Gelfand and J. Brett.
Reprinted by permission.
Adler, Robert S., and Elliot M. Silverstein, “When David Meets Goliath: Dealing with Power
Differentials in Negotiations,” 5 Harvard Negotiation Law Review. Copyright © 2000 Harvard Negotiation
Law Review. Reprinted by permission.
Arnold, Tom, “20 Common Errors in Mediation Advocacy,” 13 Alternatives 69 (1995). Copyright © 1995
John Wiley & Sons, Inc. Reprinted by permission.
Birke, Richard, Decision Trees Made Easy. Copyright © 2004 Richard Birke. Reprinted by permission.
Bryan, Kathy, A., “Why Should Businesses Hire Settlement Counsel,” 195 Journal of Dispute Resolution.
Copyright © 2008 Journal of Dispute Resolution. Reprinted by permission.
Cohen, Amy, “Gender: An (Un)Useful Category of Prescriptive Negotiation Analysis,” 13 Texas Journal of
Women and Law. Copyright © 2003 Texas Journal of Women and Law. Reprinted by permission.
Craver, Charles B., “Effective Legal Negotiation and Settlement,” in Effective Legal Negotiation and

19
Settlement. Copyright © 2001 Matthew Bender & Company, Inc., a member of the LexisNexis Group.
Reprinted by permission.
Craver, Charles B., “The Impact of Gender on Negotiation Performance,” 14 Cardozo Journal of Conflict
Resolution. Copyright © 2013 Cardozo Journal of Conflict Resolution. Reprinted by permission.
Craver, Charles B., “The Inherent Tension Between Value Creation and Value Claiming During
Bargaining Interactions,” 101 Cardozo Journal of Conflict Resolution. Copyright © 2010 Cardozo Journal of
Conflict Resolution. Reprinted by permission.
Ebner, Noam, “Negotiation Via (The New) Email,” in Negotiation Excellence: Successful Deal Making,
Second Edition, by M. Benoliel, ed. Copyright © 2014 World Scientific Publishing, Singapore. Reprinted by
permission.
Epstein, Lynn A., “Post-Settlement Malpractice: Undoing the Done Deal,” 46 Catholic University Law
Review. Copyright © 1997 Catholic University Law Review. Reprinted by permission.
Fisher, Roger, “Negotiating Powers: Getting and Using Influence,” in J. William Breslin and Jeffrey Rubin,
eds., 27 Negotiation American Behavioral Scientist. Copyright © 1983 Sage Publications. Reprinted by
permission.
Fiss, Owen M., “Against Settlement.” 93 Yale Law Journal. Copyright © 1983 the Yale Law Journal
Company, Inc. Reprinted by permission.
Goodpaster, Gary, “A Primer on Competitive Bargaining,” 325 Journal of Dispute Resolution. Copyright
© 1996 Journal of Dispute Resolution. Reprinted by permission.
Heen, Sheila, and John Richardson, “I See a Pattern Here and the Pattern is You,” in The Handbook of
Dispute Resolution by M. I. Moffitt and Robert C. Bordone, eds. Copyright © 2005 John Wiley & Sons,
Inc. Reprinted by permission.
Hetherington, H., Lee, “The Wizard and Dorothy, Patton and Rommel: Negotiation Parables in Fiction
and Fact,” 289 Pepperdine Law Review. Copyright © 2001 Pepperdine Law Review. Reprinted by
permission.
Hinshaw, Art, and Jess K. Alberts, “Doing the Right Thing: An Empirical Study of Attorney Negotiation
Ethics,” 16 Harvard Negotiation Law Review. Copyright © 2011 Harvard Negotiation Law Review.
Reprinted by permission.
Kichaven, Jeffrey, G. “How Advocacy Fits in Effective Mediation,” 16 Alternatives. Copyright © 1999
John Wiley & Sons, Inc. Reprinted by permission.
Kiser, Randall, “The Emotionally Attentive Lawyer: Balancing the Rule of Law with the Realities of
Human Behavior,” 15 Nevada Law Journal. Copyright © 2015 Nevada Law Journal. Reprinted by
permission.
Korobkin, Russell, “A Positive Theory of Legal Negotiation,” 88 Georgetown Law Journal. Copyright ©
2000 Georgetown Law Journal. Reprinted by permission.
Korobkin, Russell, Michael Moffit, and Nancy Welsh, “The Law of Bargaining,” 87 Marquette Law
Review. Copyright © 2004 Marquette Law Review. Reprinted by permission.
Longan, Patrick, “Ethics in Settlement Negotiations: Foreword,” 52 Mercer Law Review. Copyright ©
2001 Mercer Law Review. Reprinted by permission.
Menkel-Meadow, Carrie, “Toward Another View of Legal Negotiation: The Structure of Problem

20
Solving” 31 UCLA Law Review. Copyright © 1984 Carrie Menkel-Meadow. Reprinted by permission.
Miller, Lee E., and Jessica Miller, “A Woman’s Guide to Successful Negotiating.” Copyright © 2002 the
McGrawHill Companies. Reprinted by permission.
Mnookin, Robert H., Bargaining with the Devil: When to Negotiate, When to Fight. Copyright © 2010
Simon & Schuster. Reprinted by permission.
Mnookin, Robert H, “Why Negotiations Fail: An Exploration of Barriers to the Resolution of Conflict,” 8
Ohio State Journal of Dispute and Resolution. Copyright © 1993 Robert H Mnookin. Reprinted by
permission.
Mnookin, Robert H., Scott R. Peppet, and Andrew S. Tulumello. Beyond Winning: Negotiation to Create
Value in Deals and Disputes, pp. 37-42, 282-286. Cambridge, MA: The Belknap Press of Harvard University
Press. Copyright © 2000 the President and Fellows of Harvard College. Reprinted by permission.
Moffitt, Michael, “Contingent Agreements: Agreeing to Disagree About the Future,” 87 Marquette Law
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 CHAPTER
1
Negotiation and Conflict

A. Introduction to Negotiation

Negotiation is the process of communication used to get something we want when another person has control
over whether or how we can get it. If we could have everything we wanted, materially and emotionally,
without the concurrence of anyone else, there would be no need to negotiate. Because of our interdependence,
the need to negotiate is pervasive.
Everyone negotiates as part of modern life. However, because lawyers are paid to negotiate for others, we
are considered professionals. A law student reading only casebooks might not know that the vast majority of
disputes in which lawyers are involved are negotiated to a settlement without trial. Many major transactions
are also the result of lawyer-negotiated agreements. Negotiation is at the core of what lawyers do in
representing clients.
Most lawyers think they are skilled negotiators because they negotiate frequently. However, negotiating
frequently does not necessarily result in negotiating effectively. Unlike trial practice, negotiation is usually
done in private without the opportunity to compare results or benefit from a critique. Those with whom you
negotiate rarely give you an honest assessment of how you did, and it is most often in their interest for you to
believe you did well. Regardless of our intuitive ability, negotiation skills and results can be improved with
analysis and understanding, as well as practice.
Lawyer negotiation takes place within the dynamics of settling a dispute or shaping a deal. It is not always a
tidy process that tracks a textbook diagram. In this book we use a seven-stage model of negotiation,
recognizing that all negotiations do not follow the same lineal staging and each stage will not necessarily be
completed. The negotiation dance can be improvised to fit the situation. For example, we list initial
interactions and offers as part of Stage 2 before exchanging information; however, the initial offer or demand
may often follow an exchange of information. The seven stages are:

1. Preparation and Setting Goals

2. Initial Interaction and Offers
3. Exchanging and Refining Information
4. Bargaining
5. Moving Toward Closure
6. Reaching Impasse or Agreement
7. Finalizing the Agreement

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 Negotiation occurs because there are conflicts between what parties want or how they perceive a situation.
As a professional negotiator you have an edge if you understand the nature of the conflict to be resolved, the
psychology of negotiation, and contrasting styles of bargaining. So, we begin with the nature of conflict and
the role of perceptions, as well as emotional dimensions and psychological traps. Next we look at the
advantages and disadvantages of using a more competitive or cooperative bargaining style. We then examine
the stages of negotiation and the activities associated with each step. Subsequent chapters look at cyber
negotiation, gender and culture, ethics, the role of law, negotiation assistance, and policy issues.

B. Conflict

Although conflict can cause distress and is usually viewed negatively, it can function in positive ways. Conflict
may motivate you to take action and change your situation in ways that improve your life and better fulfill
your self-interests. Conflict can, however, also create a crisis mentality that becomes destructive. Lawyers can
help create more constructive outcomes from conflicts or they can make a difficult situation worse. The ability
to help clients better understand the conflict, reframe the issues, and realistically analyze their interests and
how those interests can be advantageously negotiated is an important lawyering skill.
Conflict is divided into two categories: interpersonal (differences that arise between individuals or groups)
and intrapersonal (conflicts within ourselves). Interpersonal conflict is a situation in which the parties each
want something that they perceive as incompatible with what the other wants. Because the parties in an
interpersonal conflict cannot both have all that they want, their interests or goals are divergent. Lawyers are
retained to help resolve interpersonal conflicts between our clients and others. A client may also be conflicted
internally about what it is they really want and how they prioritize their interests. For example, does your
client really want to return to the job from which she was fired, or does she want only to restore her self-
respect and get compensation? Does the father you represent in a divorce really want custody of the children,
or is he internally conflicted about the decision to divorce and trying to hold onto the marital relationship?
Recognizing these two different types of conflict can be critical in achieving client goals.
Another distinction that can be useful in negotiation and mediation is between the manifest conflict, which
is overt or expressed, and the underlying conflict, which is hidden or not recognized. Lawyers most often deal
with manifest conflicts, which we refer to as disputes. A conflict may not become a dispute if it is not
communicated in the form of a complaint or claim. However, what is communicated may be only a part of or
symbol of the underlying conflict. The dispute between brothers over control of a family business seems safer
to contest than the underlying conflict of who was the favored son or a better child. A patent or copyright
dispute may focus on lost revenue, while the fundamental conflict is over public recognition of creative
accomplishment and originality. Residential development disputes may focus in court on specific
environmental regulations or traffic issues, but the underlying conflict is about the changing character of the
community. This dichotomy between the overt dispute and the hidden conflict can be viewed for purposes of
negotiation as the presenting problem and the hidden agenda.
If the agreements reached in negotiation resolve only the presenting problems, they are less likely to last
unless legally enforced. Surfacing the underlying conflict can clarify issues, focus objectives, generate new
possibilities for settlement, and ultimately improve relationships. Dealing with the underlying conflicts,

24
however, may be emotionally difficult for clients and can stimulate internal conflict. Many lawyers are not
comfortable with opening emotional issues and may not have the capacity to address them. We will look more
into the emotional aspects of conflict and psychological issues shortly.
First, it is helpful to note that lawyers generally negotiate to reach a settlement, not necessarily to resolve
the underlying conflict. The resulting negotiated settlement usually involves the payment of money, now or in
the future; an agreement to provide goods or services, or to change behavior; or some combination of these.
Conflicts over fundamental beliefs, religion, and love are not negotiated by lawyers, even if changes in
behavior or payments of money for past behavior based on religion or belief may be within the realm of lawyer
negotiation. Although we don’t negotiate to change feelings or beliefs, our clients may come to change how
they feel about their dispute through discussion, sharing information, and exchanging views.
As lawyers dealing with other people’s conflicts, we tend to view our approach to negotiating in their behalf
as a choice of different styles reflecting our own understanding about conflict and our own values. These
choices may seem like polar opposites that go to the core of how we approach conflict and who we are. This
seeming paradox of negotiating approaches can be very challenging for law students and for attorneys. In a
recent book, The Conflict Paradox (2015), Bernard Mayer lists seven dilemmas in dealing with conflict:

• Competition or cooperation
• Optimism or realism
• Avoidance or engagement
• Principle or compromise
• Emotion or logic
• Neutrality or advocacy
• Autonomy or community

Mayer writes that these polarities are not true choices but are part of the dynamics of human interaction
and the nature of conflict. He urges a more sophisticated, nuanced, and complex approach that recognizes in
most incidents both sides of these polarities must be embraced. We have to get past understanding them as
contradictions forcing either-or choices and accept the complementary unity of both elements. In other words,
you need not choose a thoroughly cooperative or competitive stance. You need not be guided by only
emotions or logic — one does not foreclose the other. We will look at competitive or cooperative negotiation
in detail, the dual roles of emotion and logic, as well as other dilemmas in settling conflicts. For now, there is
one other preliminary aspect of conflict that must be considered before negotiation can begin.

C. Ripeness

Before you can negotiate, the conflict must be “ripe” for negotiation. Professor Jeffrey Rubin describes the
role of ripeness in his classic article, Some Wise and Mistaken Assumptions About Conflict and Negotiation (1991).
He explains that just as it takes two hands to clap, it takes two participants to negotiate. Even if you are ready
to start serious discussion toward settlement, there must be a counterpart at the table, on the phone, or at the
other end of your email. Unless there is someone ready to communicate on the other side, there can be no

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negotiation.
Even if all parties agree to negotiate, there can be no settlement without mutual motivation to take the
conflict seriously. A non-motivated disputant will put off reaching an agreement until the situation changes.
People typically do not sit down to negotiate until they realize it is in their interest to do so or they have
reached a point where they fear the consequences of not pursuing an agreement. Each side, according to
Rubin, must no longer believe “it possible to obtain what he or she wants through efforts at domination or
coercion. It is only at this point, when the two sides grudgingly acknowledge the need for joint work if any
agreement is to be reached, that negotiation can take place.”
Rubin defines “ripeness” as “a stage of conflict in which all parties are ready to take their conflict seriously,
and are willing to do whatever may be necessary to bring the conflict to a close. To pluck fruit from a tree
before it is ripe is as problematic as waiting too long. There is a right time to negotiate, and the wise
negotiator will attempt to seek out this point.” He notes that it is possible to create ripeness through the use of
threat and coercion so that the opposing side can see the consequences of failing to reach agreement.
However, he cautions against coercion and threats as a means to ripen the conflict because it encourages
conflict escalation and invites a game of “chicken,” in which each side hopes that the other be the first to
succumb to coercion.
A better way to create a situation that is ripe for negotiation and settlement is through the introduction of
new opportunities for joint gain. If all sides can be persuaded that there is more to gain than to lose through
negotiation, rewards can be harvested that can advance each side’s agenda and form a basis for agreement.

Notes and Questions

1. Morton Deutsch, who pioneered the modern study of conflict resolution, distinguished manifest
conflict from underlying conflict, as summarized in our introductory comments. (See Deutsch 1973.)
Rubin, a former student of Deutsch, separates settlement of the manifest conflict behaviors from the
attitude changes necessary to bring an end to the underlying base of conflict. We noted a similar
distinction between the presenting problem and the hidden agenda. Do you agree that settlement only
of the manifest problem is unlikely to last? Why or why not? Is litigation limited only to the manifest
or presenting issues? Is Rubin correct in indicating that negotiation is only a method of settling conflict
rather than resolving it?
2. Just as it takes two or more people to have a conflict, so it takes two or more people to reach
agreement. Ripeness of the conflict is critical for those involved to begin serious negotiation toward
resolution. What do you think Rubin means when he suggests that new opportunities for joint gain
create ripeness? How might this concept help lawyers get disputes resolved?
3. How do lawyers most often create “ripeness” to seriously negotiate and settle disputes?

D. The Triangle of Conflict and Negotiation

You are now aware that the issue initially presented by your client, which may focus on monetary claims and

26
legal rights, is not necessarily the entirety of the conflict or even the main element. You also know that logic is
not the singular path to negotiating settlement of a conflict. There is increasing recognition that to negotiate a
satisfactory resolution of a conflict there must be an understanding of and attention to the emotional and
relationship components, which may be the underlying bases of the conflict. Even though the dominant focus
in most lawyer negotiations is on the trade-offs involving legal claims or economic considerations measured in
money damages, neglecting the non-monetary components resulting from conflicts can lead to an impasse or a
settlement that does not hold.
There are three sets of factors, or interests, at work in most conflicts. These interests can be thought of as
the three “Es”: economic, emotional, and extrinsic. They form the three sides of the negotiation triangle,
which represent the three sets of interests that must be addressed to reach a satisfactory settlement of a
dispute.

NEGOTIATION TRIANGLE

Legal issues and rights are what often bring lawyers to the negotiation table to bargain over economic
damages. Once there, the other two sides of the triangle that impact clients enclose and influence the
negotiation process and outcome. The emotional component refers to the internal pushes and pulls on parties
created by the conflict that affect how they feel about themselves. The extrinsic elements are the setting and
social considerations, including how others will view what is going on and how the resolution will appear to
third parties. “Face saving” is frequently referred to in the negotiation literature; it is an extrinsic social factor
that also has an emotional impact. The three sides of the triangle are interrelated and have an impact on one
another. The mix of what matters for purposes of resolving a conflict will vary depending on the subject and
the sensitivities and history between the parties, as well as their attorneys. A purely commercial case will most
heavily involve economic considerations. However, all three elements are involved to some extent in every type
of dispute. A business person sued for breach of contract has feelings about accusations from a longtime
supplier and concerns about his reputation in the business community. A divorce or employment dispute,
although focused on legal rights and money, will invoke more emotional and extrinsic factors. For example, in
a divorce, what will children, grandparents, and neighbors think about new parenting arrangements? In a
wrongful termination case, how will acceptance of the economic offer appear to co-workers who remain
friends with the terminated worker? Attention to the non-economic factors can help prevent or end a
negotiation impasse and move the matter to resolution.
It can be difficult to quantify the emotional and extrinsic factors, but there might be ways to satisfy the

27
internal-emotional and external-social factors in a manner that both settles the case and helps resolve the
conflict. As you read the following real-life fact situation and resulting lawsuit, settled a year and a half after
the incident, consider what roles both emotional and social factors might have played in negotiating a
settlement agreement.

Problem — Tiger Attack

Tatiana, a 250-pound Siberian tiger in the San Francisco Zoo, leapt out of her enclosure, killed 17-year-
old Carlos Sousa, Jr., and injured two of his friends, brothers Amritpal Dhaliwal, then 19, and Kulbir
Dhaliwal, then 23. The tiger was shot dead by police. The media coverage was extensive. Zoo spokesman
Sam Singer, hired by the zoo for damage control, seemed to blame the brothers for the incident,
suggesting that they taunted the tiger. Animal rights advocates protested the shooting of the tiger. Zoo
attendance and donations dropped.
A claim for the death of Carlos Sousa, Jr. was settled. The Dhaliwal brothers sued the San Francisco
Zoological Society, the City of San Francisco, and Sam Singer. Their federal lawsuit alleged that the zoo
was negligent in maintaining a tiger enclosure several feet below recommended standards, claimed their
civil rights were violated because their car was improperly seized, and accused Singer of libel and slander
for comments he made to media implying that they might have been taunting the tiger. They also alleged
that police officials had ordered officers to issue warrants for their arrest, accusing them of manslaughter
in the death of their deceased friend, Carlos Sousa, Jr., even though an investigation could not substantiate
any basis for bringing charges against them. Substantial damages were sought by the brothers, well beyond
the relatively modest amounts for physical injuries and medical expenses.

1. If you were advising the zoo, would you recommend that it negotiate a settlement? Is there any
downside for the zoo in negotiating? Would your answers be different if you were representing the
Dhaliwal brothers?
2. What are the non-economic factors in this conflict, and how might they be addressed in negotiation?
3. What might the Dhaliwal brothers obtain in a negotiated settlement that they could not win at trial?

The emotional side of the triangle of conflict might be the most difficult for you to deal with if you are not
trained in psychology. You might negotiate what you think is a great resolution of a dispute, only to have it
rejected by your client, who must agree before a settlement or deal is finalized. Understanding the emotional
stages experienced by a client in a conflict can help you better represent your client in negotiations. Professor
Gerald Williams identifies the emotional stages a client might follow to move out of a conflict and get on
with life or business. The last phase of renewal or transformation listed by Williams may be more an
inspirational hope than a realized reality.

Gerald R. Williams, NEGOTIATION AS A HEALING PROCESS

J. Disp. Resol. 1 (1996)

28
 The Five Steps for Recovering from Conflict

. . . Just as researchers have found that getting into a conflict is a multi-step process that typically involves
naming, blaming, claiming, rejection, and a decision to go public, even so, the task of getting out of a conflict
requires the disputants to work their way through a multistage process.

A. Denial

As a preliminary model of the process of recovering from conflict, the first stage is typically a condition of
denial. As James Hall explains, there is in each of us “a deep-seated human desire not to be the one at fault,
not to be the one who must change.” This resistance to being the one at fault, to being the one who must
change, is part of what makes conflict so painful and its resolution so difficult. Most conflicts are a story of
two parties, both of whom contributed to the problem, and neither of whom wants to admit his or her role in
it. In the literature on grieving we gain a broader sense of what is meant by the term denial and some of the
risks it poses to the parties and others: “The person will strongly deny the reality of what has happened, or
search for reasons why it has happened, and take revenge on themselves and others.” . . . From this
perspective, we might even say that, in most instances, conflicts are meaningful; they have a purpose. Their
purpose is to hold up a mirror so disputants may see themselves in a new light, an experience as painful as it is
valuable. . . .
Properly understood, then, conflicts serve as such a mirror. They expose the disputants’ weaknesses; the
areas in which they have been too much the victim, or too much the exploiter; their complexes, their
unresolved angers, and their feelings of specialness and entitlement. Because it is so painful for disputants to
see these parts of themselves exposed by their own involvement in the conflict, they need the protection and
reinforcement, the containment and channeling, that the lawyer-client relationship provides, and they need
the benefit of the full play of the negotiation process to help them gradually face what they see in the mirror
and to come to terms with it. . . .

B. Acceptance

The next step is acceptance. It may take time, but at some point the parties need to move beyond denial and
to accept the possibility that they themselves are part of the problem. They do not yet need to do anything about it,
just to accept the possibility that the problem does not begin and end with the other side, that they themselves
may have some complicity in the problem. In some cases, however, it may be that one side actually is wholly
innocent and the other wholly to blame for the problem. But even when parties are wholly innocent, they still
need to accept the possibility there is something they could do now to move the situation in the direction of an
appropriate resolution. Again, they don’t need to actually take action, they simply need to register a change in
attitude that opens them to the possibility of movement in the direction of an appropriate solution.

C. Sacrifice

Assuming the parties have accepted the possibility they are part of the problem, or the possibility there is
something they could do now to move in the direction of a resolution, the next step is to consider what they
might be willing to do about it. In its starkest form, the principle is that, for the conflict to be resolved, the

29
parties must be willing to make a sacrifice. From a judge’s point of view, the minimum sacrifice required for a
valid settlement agreement is a compromise by each side, meaning that both parties must make some
concession, must move from their original position. But as a general matter, mere concessions or compromises
do not require a change of heart. It has been observed that people usually are not willing to make a sacrifice
until they have been brought to a more humble attitude. . . . Assuming that sacrifices need to be made, what
should they be? This is an extremely delicate question. We know, for example, that some people have a history
of being too compliant, of giving away too much, whether motivated by a need for affection and approval, by
fear of reprisals, or for some other reason. For those who are too compliant, the sacrifice called for would
probably not be to make more concessions to their antagonist, but rather to forebear from giving, to reverse
themselves, to give up the part of themselves that always wants to please others. For other people, the problem
may be just the opposite. They may be exploiters who are too good at looking out for themselves at others’
expense. For them, the sacrifice may be to recognize their exploitive patterns and become more conscious of
the interests and needs of other people. There are many other possibilities. The answer will depend on the
personalities involved and the particularities of their situations. In some situations, parties may need to
sacrifice — to let go of — such things as a desire for a total victory, or an impulse for revenge, a mistaken
belief that they themselves are faultless and the other side totally to blame, their pride, their unwillingness to
acknowledge or appreciate another’s point of view, or their unwillingness to forgive another for his or her
mistake. In other situations, parties may need to give up the belief that they can get away with exploiting
others, their belief that they are better or more deserving than others, or their excessive opinions of their own
abilities, worth, privileged status, etc. There may be situations in which parties need to give up their hope of
obtaining a windfall or other unearned benefit, or give up their envy or spite or jealousy with respect to
possessions, luck, and social position.
Before proceeding to the fourth step, there is one final consideration. Is it mandatory that parties make a
sacrifice? The answer is a firm “no.” There can be no requirement that the client have a change of heart. It is
fundamental that, as lawyers, we implicitly and explicitly declare to our clients that they can stay just the way
they are, and so long as they do not expect us to do that which is illegal or unethical, we will stand by them.
Our willingness to represent our clients should not depend upon their willingness to change, much less to
move in directions we think right. As Shaffer and Elkins remind us, “the client has to be free to be wrong.”
The negotiation process, then, is not intended for lawyers to impose our values upon our clients, but for us to
help contain and channel our clients’ energies in appropriate ways until they have had enough time to see their
own situations more clearly and to discover for themselves what steps they may be willing to make.

D. Leap of Faith

The fourth stage refers to action or movement, what might be called the leap of faith. It is a leap of faith, for
example, to admit to the other side that you might be willing to make a sacrifice to resolve the case. Practicing
lawyers recognize it as the moment when their client looks them in the eye and asks, “If I do this, can you
guarantee it will work?” And the lawyer has to reply, “No, I can’t guarantee that, because I don’t know that.
But the trial is coming up really soon, and we haven’t thought of anything better to do, but you decide.” And
the client must decide. . . .

30
 E. Renewal or Healing from Conflict

If the process works well enough, and both parties are willing to move by incremental leaps of faith in the
direction of agreement, and if they seek in the process to fathom the underlying problems and address them
along the way, the effect can be two-fold: they may reach a mutually acceptable solution and, in the best of
circumstances, they may also experience a change of heart, be reconciled to one another and healed and feel
renewed as human beings. This is the transformation objective; it is the goal or purpose of all ritual processes,
whether it be theater or court trial or graduation exercise or religious rite or negotiated settlement. Rituals are
to help prepare the participants, those on whose behalf the ceremony is enacted, to move forward in a new
condition, to a new phase of life. Renewal or transformation in this context means not simply they are as good
as they were before the conflict, but they are better — they are more whole, or more compassionate, or less
greedy, or otherwise changed in an important way from their attitude or condition before the crisis began.
Certainly, when people experience such a fundamental change through the process of conflict resolution, they
will be far less likely to find themselves in a similar conflict again. On the other hand, if they fail at this
process, then to the extent the conflict was a product of their own developmental shortcomings, it is likely
they will find themselves in similar conflicts in the future, returning again and again until the party
acknowledges and addresses the underlying developmental need. . . .

Notes and Questions

4. Elizabeth Kubler-Ross, in her 1969 book On Death and Dying, introduced a model known as the five
stages of grief, by which people deal with grief and tragedy, specifically when diagnosed with a terminal
illness. Kubler-Ross’s five stages are denial, anger, bargaining, depression, and acceptance. This five-
stage model, or some variation, has since been applied by authors to every type of personal loss,
including divorce and bankruptcy. How does Professor Williams’s five-stage model differ from Kubler-
Ross’s five stages of dealing with death? Do you agree with Williams’s five-stage analysis as applied to
conflict?
5. Many people have a negative view of conflict and try to avoid it. Do you? Was conflict viewed as
negative in your family? During your childhood, how did your family deal with conflict? Will you try to
model the same conflict process for your children?
6. As a lawyer, will you welcome representing clients who seek your help to resolve their conflicts with
others? Why or why not?

31
 CHAPTER
2
Perception, Fairness, Psychological Traps, and
Emotions

A. The Role of Perceptions

“We do not see things as they are. We see things as we are.”

— The Talmud

The key to understanding and mastering negotiation is to be aware that those in conflict and who want
something from one another see the situation differently. It is these differences that give root to conflict and
to the need to negotiate, as well as to the possibility of agreement. We assess conflict and evaluate a case or
the worth of an item differently because of differing perceptions. Our individual perceptions determine how
we view ourselves, others, and the world. No two views are exactly the same. For example, we may selectively
perceive or differ in our perceptions of the following:

• facts • abilities
• people • available resources
• interests • scarcity
• history • timing
• fairness • costs
• priorities • applicable law or rules
• relative power • likely outcomes

Our view of each of these elements, as well as our perceptions of other variables, shape how we see the world
and how we form differences. It is because of such differences in perceptions that people bet on horse races,
wage war, and pursue lawsuits.

Rashomon Effect

The Rashomon effect is the name given to contradictory perceptions of the same event by different people. The
phrase derives from a classic Japanese story, on which the film Rashomon is based, illustrating the subjectivity
of perceptions and how the truth through one person’s eyes may be very different from another’s, as seen
through the prism of the individuals’ own perceptions. The story and the film explore how perceptions distort
or enhance different people’s memories of a single event, in this case, the death of a Samurai warrior. Each
tells the “truth” but perceives it very differently. The film, like the story, is unsettling because, as in much of
life, no single truth emerges.

32
 Similarly the parable of blind men, each touching a different part of an elephant and from that experience
describing what an elephant is, has been used to illustrate that there is a range of “truths” based on where you
are in relation to what you are experiencing and differing perceptions. The parable implies that one’s
subjective experience can be true, but that such experience is inherently limited by its failure to account for
other truths or a totality of a single truth.

And so these men of Hindustan

Disputed loud and long,
Each in his own opinion
Exceeding stiff and strong,
Though each was partly in the right
And all were in the wrong.
“The Blind Men and the Elephant” by John Godfrey Saxe (1816–1887)

The Rashomon effect is more recently illustrated in The Girl on the Train, a best-selling novel by Paula
Hawkins (2015). The story is told from three character’s perspectives. Each person’s account is very
compelling, but each person perceives the same events through a different prism of their own reality, creating
a suspenseful tale where the “true” picture only emerges at the end after the three separate versions are
contrasted.
As a new lawyer negotiating a dispute, it may seem puzzling when those on the other side of the conflict
insist that your earnest client is misstating the facts and is wrong. Lawyers are often presented only their
client’s factual account, which may be very different than what is told to opposing counsel by their client.
Each client may well be stating the situation truthfully as they perceive it. The following reading further
develops the theme that conflict is subjective and flows from different perceptions in people’s minds.
Rummel’s “subjectivity principle” may help to explain many conflicts that would otherwise defy understanding
and resolution.

R.J. Rummel, THE CONFLICT HELIX

13 (Transaction Publishers, 1991)

The Subjectivity Principle

Perceived reality is your painting. You are the artist. You mix the colors, draw the lines, fix the focus,
achieve the artistic balance. Reality disciplines your painting; it is your starting point. As the artist, you add
here, leave out there; substitute color, simplify; and provide this reality with a point, a theme, a center of
interest. You produce a thousand such paintings every moment. With unconscious artistry. Each a personal
statement. Individualistic.

33
 Now, most people realize that their perception of things can be wrong, that they may be mistaken. No
doubt you have had disagreements with others on what you all saw or heard. And probably you have heard of
eyewitnesses who widely disagree over the facts of a crime or accident. Some teachers who wish to
dramatically illustrate such disagreement have staged mock fights or holdups in a classroom. A masked man
rushes in, pointing some weapon at the teacher; demands his wallet; and with it hastily exits, leaving the class
stunned. Then each member of the class is asked to write down what he saw and heard. Their versions usually
differ widely.
But, of course, such are rapidly changing situations in which careful observation is difficult. Surely, you
might think, if there were time to study a situation or event you would perceive it as others do. This is easy
enough to test. Ask two people to describe in writing a furnished room, say your living room, or a car you may
own. Then compare. You will find many similarities, but you should also find some important and interesting
differences. Sometimes such differences result from error, inattentiveness. However, there is something more
fundamental. Even attentive observers often will see things differently. And each can be correct.
There are a number of reasons for this. First, people may have different vantage points and their visual
perspectives thus will differ. A round, flat object viewed from above will appear round, from an angle it will
appear an ellipse, from the side a rectangle. This problem of perspective is acute in active, contact sports such
as football or basketball. From the referee’s line of sight there is no foul, but many spectators (especially the
television audiences who see multiple angles and instant replays) know they saw an obvious violation.
But people can compare or change perspectives. Were this all, perception would not be a basic problem.
The second reason for different perceptions is more fundamental. You endow what you sense with meaning.
The outside world is an amorphous blend of a multitude of interwoven colors, lights, sounds, smells, tastes
and material. You make sense of this complex by carving it into different concepts, such as table, chair, or boy.
Learning a language is part of learning to perceive the world.
You also endow this reality with value. Thus what you perceive becomes good or bad, repulsive or
attractive, dangerous or safe. You see a man running toward you with a knife as dangerous; a calm lake as
peaceful; a child murderer as bad; a contribution to charity as good. And so on.
Cultures are systems of meanings laid onto reality; to become acculturated is to learn the language through
which a culture gives the world unique shape and evaluation. A clear example of this is a cross, which to a
Christian signifies the death of Jesus for mankind as well as the whole complex of values and beliefs bound up
in the religion. Yet, to non-Christian cultures a cross may be meaningless: simply two pieces of wood
connected at right angles. . . .
Besides varying perspectives and meanings, a third reason for different perceptions is that people have
unique experiences and learning capacities, even when they share the same culture. Each person has his own
background. No two people learn alike. Moreover, people have different occupations, and each occupation
emphasizes and ignores different aspects of reality. Simply by virtue of their separate occupational interests,
the world will be perceived dissimilarly by a philosopher, priest, engineer, union worker, or lawyer.
Two people may perceive the same thing from the same perspective, therefore, but each through their
diverse languages, evaluations, experience, and occupations, may perceive it differently and endow it with
personal meaning. Dissimilar perspective, meaning, and experience together explain why your perception will
often differ radically from others.

34
 There is yet an even more basic reason: what you sense is unconsciously transformed within your mental
field in order to maintain a psychological balance. This mental process is familiar to you. People often perceive
what they want to perceive, what they ardently hope to see. Their minds go to great pains to extract from the
world that which they put there. People tend to see things consistent with their beliefs. If you believe
businesspeople, politicians, or bureaucrats are bad, you will tend to see their failings. If you like a person, you
tend to see the good; hate him and you tend to see the worst. Some people are optimists, usually seeing a
bottle half full; others are pessimists, seeing the same bottle half empty.
Your perception is thus the result of a complex transformation of amorphous sensory stimuli. At various
stages your personal experience, beliefs, and character affect what you perceive. . . . Independent of the outside
world’s powers to force your perception, you have power to impose a perception on reality. You can
hallucinate. You can magnify some things to fill your perception in spite of what else is happening. . . .
No wonder, then, that you are likely to perceive things differently from others. Your perception is subjective
and personal. Reality does not draw its picture on a clean slate — your mind. Nor is your mind a passive
movie screen on which sensory stimuli impact, to create a moving picture of the world. Rather, your mind is
an active agent of perception, creating and transforming reality, while at the same time being disciplined and
sometimes dominated by it. . . .

Notes and Questions

Rummel’s subjectivity principle explains how we process the information and stimuli around us through
the filters of our experience, needs, culture, and biases. The complexity of our environment and our minds
prevents us from taking it all in whole, so we focus selectively on some stimuli and ignore others. We
develop shortcuts in our perceptual systems that allow us to function and process information more
quickly and make timely decisions. These shortcuts, known as heuristics, can serve us well. However,
mental shortcuts create the risk that our selectivity will distort reality as seen by others. The different ways
we process information can lead to conflict based on our different realities.
A key concept in understanding the cause of disputes is selective perception or what is known as the
confirmation bias. We tend to unconsciously notice information that confirms our already existing views
and disregard conflicting information that doesn’t support what we think. The offspring of selective
perceptions is self-fulfilling prophecies, which occur when our behavior is influenced by our selective
perceptions, which causes others to behave toward us in a way that further confirms the “truth” of our
thinking.

In an escalating conflict, we tend to see what we want to see and to distort information to support our expectations. One way we do
this is by selectively testing hypotheses. We form a hypothesis about the adversary such as, this person is nasty. Then we gather
information to confirm our hypothesis and ignore information that does not support it. In selective perception we have only dealt
with perceptions. When behavior is introduced, we have a self-fulfilling prophecy, which connects attitudes and behaviors. I have an
expectation of you that leads me to behave in a way that produces a response in you that confirms my expectation. My prophecy
about the kind of person that you are is fulfilled. (Rubin 1993)

1. Can you recall a conflict you have experienced that might be better understood in light of the
subjectivity principle or selective perceptions?

35
 2. John Milton, in Paradise Lost, poetically stated: “The mind is its own place, and in itself can make a
heaven of Hell, a hell of Heaven” (Milton 1909). In explaining his subjectivity principle, is Rummel
just restating Milton?
3. If a conflict between people is the result of different perceptions, what might be of help in resolving the
conflict?
4. Is there a connection between Rummel’s subjectivity principle and the distinction made in Chapter 1
between the manifest conflict and the underlying conflict? Can you articulate an explanation of
manifest conflict or underlying conflict based on Rummel’s subjectivity principle?

B. Heuristics — Thinking Fast and Slow

There are two methods by which we make decisions. One is fast and the other is slower. Intuition based on
experience and the functioning of the reptilian part of our brain allows us to make quick “gut” decisions using
instinctual shortcuts that can be convenient, if not life-saving. The more deliberate, rational process of
decision making is what we are trained in law school to utilize, commonly referred to as “thinking like a
lawyer.” This method takes in and processes more information and slows down decision making through the
use of our cerebral cortex. The two decision systems modulate one another and can be in conflict, with the
instinctive approach initially predominating because of its speed and utility.
Malcolm Gladwell popularized the benefit of nurturing quick, experience-based decisions not encumbered
by deliberation in his best-selling book Blink (2007). Nobel prize winning psychologist Daniel Kahneman
utilizes decades of research in explaining and labeling decision-making shortcuts, or cognitive heuristics, and
the errors we can make when depending on intuitive judgment and how they can interfere with more rational,
information-based decision making. (Thinking Fast and Thinking Slow, 2011) Kahneman, however
acknowledges that our thoughts and actions are routinely guided by intuitive decisions that are generally on
the mark and that we cannot live without them. Instinctive, fast judgments generally produce adequate
solutions, but also create biases and flawed decisions if not monitored by rationality and more information.

Problem

Students at your school, who had expected to attend a required lecture without charge, are told after they
arrive that they will each have to pay $20 to cover unexpected expenses. They can, however, spin a roulette
wheel with four chances in five of paying nothing and one chance of having to pay $100. Which will most
choose and why? (Hint: The answer is within the list below.)

Top Ten Psychological Traps

The following is an alphabetical list of the top ten common mental traps that can create disputes or make
them more difficult to resolve. Some are interrelated; some have multiple labels. We return to these cognitive

36
shortcuts and expand the list later when we examine why negotiations fail. They also come into play in a later
chapter on how mediators can move negotiations through an impasse to settlement.

• Anchoring: A dispute over the value of an item often arises because we form an estimate of an unsure value
by comparing it to something we know or to a number to which we are exposed that is then planted in our
brain. The number you are exposed to as a value anchors your calculation and influences your thinking.
When a client is burnt by hot soup at a restaurant, she may think the restaurant is to blame and her claim is
worth millions because she read about a multimillion-dollar verdict against McDonald’s for coffee that was
served too hot. You, as a sophisticated lawyer, understand that this case is distinguishable from the
McDonald’s case, which was reduced on appeal as excessive, and that this client’s case is much weaker and
worth less than that one, so you adjust from the McDonald’s verdict downward. The question is whether
you adjust far enough. Research suggests that you will not adjust sufficiently because of the anchoring effect
of the headline verdict, which distorts your analysis and expectation.
• Confirmation bias: We tend to give credit to information that is consistent with our preexisting beliefs and
wishes rather than information that challenges or contradicts them. This can dig us deeper into conflict
when dealing with those who have different beliefs or values. We read and believe articles that confirm dark
chocolate and red wine are good for us, and skim past articles that question the studies.
• Consensus error (projection): We tend to falsely believe that others think the way we do or have values similar
to ours. We also believe that others like what we like and want what we want. Those who enjoy loud music
assume that everyone will enjoy their amplified radio selections. Conflict can be created when we find out
we were wrong.
• Framing: Our thinking about an issue and our answer to a question are affected by how the question is
presented. For instance, asking a priest if you can smoke while you pray is likely to result in a different
answer than asking if you can pray while you smoke.
• Loss aversion (status quo bias): Losses tend to be felt more than equivalent gains are relished, so that the pain
from the loss of a dollar is felt greater than the joy of a dollar gain. We tend to overvalue what we have to
give up relative to what we might get. Most will not give up a “bird in the hand for two in the bush.” In
other words, we are willing to take more risk to avoid a loss than to obtain a gain. As a corollary,
negotiating parties are more likely to view their own concessions (losses) as more valuable than equivalent
concessions they get from the other side (gains).
• Naive realism: We tend to think that the way we see the world is the way it really is and anyone seeing it
differently is naive. We each see the world through the lens of our own experience and culture, believing
what we see is reality. This bias is in play when your idea or offer is rejected with the preface that in the
“real world” things are different.
• Overconfidence (egocentric bias): We tend to rate our abilities, chance of being right, and good luck more
highly than is warranted. Why else would people buy lottery tickets? We are also overconfident about our
ability to assess uncertain data and tend to give more weight to what we know than what we don’t know. As
a matter of fact, we are overconfident about ourselves in general. As examples, surveys have found that 70
percent of all drivers believe that they are more competent than the average driver, and 80 percent of
lawyers think that they are more ethical than the average attorney (Fox and Birke 2000). In negotiation,

37
 overconfidence can be compounded by positive illusions we have about the relative righteousness of our case
or cause and how much we deserve.
• Reactive devaluation: Whatever proposal comes from the other side cannot be good for us. Anything done
or suggested by them is suspect. For example, if Democrats propose legislation, Republicans are likely to
reject it, and vice versa. Also, any information or offer received is perceived as less valuable than what might
be withheld. This tends to escalate conflict.
• Selective perception: Whenever we encounter a new situation, we must interpret a universe of unfamiliar,
often conflicting data that is more than we can process. We respond by instinctively forming a hypothesis
about the situation, then organizing what we see and hear with the help of that premise. Our hypothesis
also operates as a filter, by automatically screening out anything that doesn’t support it — which in turn
reinforces the belief that our initial view was correct. Henry David Thoreau was probably thinking about
this when he said, “We see only the world we look for.” Selective perception is also the basis of self-fulfilling
prophesies and stereotyping. For example, if you are negotiating with a lawyer you believe is hostile and not
to be trusted, you may dismiss his initial friendly greeting as manipulative and selectively see him
scrutinizing you with suspicion. Your stilted behavior toward him will likely result in him seeing you as
antagonistic. Mutually reinforced surly behavior will be selectively observed and remembered to the
exclusion of overtures of civility. You will feel that your own insight and keen ability to “read” others is
confirmed, and your self-fulfilling prophecy will be realized.
• Self-serving bias (attribution error): We are our own best friend in justifying our actions while seeing the
same behavior in someone else as a shortcoming. For instance, we know that we are personally responsible
for our successes, but our failures are the result of bad luck or circumstances beyond our control. When we
are late it is for good reason; others keep us waiting because of their bad planning and insensitivity. Our
miscalculation or misstatement is a simple mistake, but our opponent’s similar error is attributed to
deception. We also tend to take more credit for favorable results than others attribute to us.

Some of the psychological factors and biases described above may work against one another when making
tactical decisions driving a negotiation. For example, as will be discussed later, there are differing views about
the advantages and disadvantages of making the first offer in a negotiation. Making the first offer, particularly
if the values involved are uncertain or without ready comparisons, could take advantage of the anchoring bias
set by your offer. However, reactive devaluation, which may be at a peak near the beginning of negotiations,
could cause the other side to radically discount your first offer because of their suspicion. (For a more
extensive catalogue of psychological principles impacting negotiation and decision making, see Birke,
“Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications,” 25
Ohio St. J. on Disp. Resol. 477 (2010).)

The Myth of Professional Objectivity

Studying the perceptions and psychological traps that immerse people in conflict helps us better understand
clients’ disputes. Although lawyers advocate and negotiate on behalf of clients, we are less subject to the
selective perspectives that can skew our client’s perceptions. As lawyers, without a direct stake in the outcomes
of our client’s disputes, we tend to believe we can think more clearly and rationally. After all, we have been

38
educated to think like lawyers, right? This is the common wisdom, but is it true?
We can often recognize our clients’ partisan perceptions, but we are easily fooled by our own ingrained
biases and distortions. By definition, what we believe is our reality. The longer we work with a client on a case
or a deal, the more we share the same reality — distorted or not. We might be no more able than our clients
to objectively analyze the weaknesses of their case or the strengths of the other side’s arguments. It can be very
helpful for you to recognize that the psychological factors likely to affect your client’s thinking and decision
errors can also affect your own assessment of case value and the attractiveness of offers to settle. (See Randall
Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients (2010).)

Questions

5. Does knowing about the potential of these perceptual biases and cognitive errors result in not being
affected by them? How can you best guard against them or overcome your own cognitive errors?
6. What is your role if you are aware of your client’s perception biases and cognitive distortions? Must you
agree to a desired goal or an outcome acceptable to your client if you are aware that the goal or
acceptance is the result of a misperception or cognitive error?
7. How might you counter cognitive error and perceptual distortion that may result in your negotiating
counterpart rejecting a settlement that is otherwise acceptable? For example, how would you handle the
anchoring problem, where your opponent is fixed on what you regard as an unrealistic outcome in
another case, or the tendency of your opponent to reject your truly generous offer because of suspicion
of any offer coming from you?

C. The Impact of Fairness

Our list of selective perceptions at the beginning of this chapter included “fairness.” Differing views of fairness
are at the heart of many litigated conflicts and failed negotiations. Fairness, like other perceptions, is in the
mind of the beholder. A client may hire you to negotiate on her behalf because she feels she has been treated
unfairly and that you, as a lawyer, can help her obtain what is fair. Fairness, as perceived by clients, can also
become central in assessing whether to accept or reject a negotiated settlement or deal.
An outcome that appears to be fair can be more important than winning or losing. Fairness may define for
some whether they have won or lost. Offers may be rejected even though they are economically advantageous
because in the client’s mind the result is not fair.
Classroom experiments with “ultimatum games” illustrate the importance of perceived fairness in
negotiation. In these games, Player 1 is given a fixed sum of money or chips (e.g., $100) as a windfall that she
might have found on the street and is asked to propose a division of that sum with Player 2 (e.g., $75 to Player
1 and $25 to Player 2). Player 1 has complete discretion to divide the money as she wishes; Player 2 can
choose only whether to accept or reject Player 1’s proposal. If Player 2 accepts the offer, both players will keep
the money as allocated. If Player 2 rejects the offer, neither player will receive anything.
Economic theory dictates that Player 1 should offer only a little more than zero to Player 2, and that Player

39
2 should accept this amount as better than nothing. In fact, in classroom experiments Player 1 generally offers
30 to 50 percent of the sum to Player 2, and when less than 50 percent is offered, many Player 2 recipients will
reject the offer, preferring to walk away with nothing rather than accept what they perceive to be an unfair
result. The results of this game reflect the importance of our innate value of being treated fairly.
Perceptions of fairness consist of two components. Distributional fairness is a quantitative notion of
material outcome — what you get as the result of a negotiation. Procedural fairness relates to the process used
to reach the outcome — how you were treated during the negotiation. Both of these components shape
people’s willingness to accept settlements and their feelings of how well attorneys represented them in the
negotiation process. (See Robbenholt and Sternlight, Psychology for Lawyers (2012).)

Problem — The Home-Run Ball Catch

More than 40,000 fans were at the ballpark to see the San Francisco Giants’ last game of the season. Most
had come to see Barry Bonds add another home run to his already record-breaking total of 72. Alex Popov
and Patrick Hayashi, who did not know one another, were two fans in the right-field arcade standing-
room section, hoping to catch a Bonds home-run ball. Sure enough, Bonds’s 73rd home-run ball came
sailing over the right-field bleachers into Popov’s outstretched glove. Within seconds, Popov fell to the
ground as a rush of people converged on him and the ball. Madness followed before security officers
arrived. When Popov was pulled from the pile of fans, the ball was no longer in his glove. Patrick Hayashi
emerged with the ball in hand.
Both men claimed ownership of the valuable home-run ball, temporarily in Hayashi’s possession. Both
thought the ball was worth more than $1 million, based on the sale of Mark McGwire’s 70th home-run
ball a couple of years earlier for more than $3 million. Each man offered the other less than $100,000 to
relinquish any claim on the ball. Each expressed strong public views that he was entitled to complete
ownership and was making a generous offer to the other. Both Popov and Hayashi cited principles of
fairness and baseball fan culture entitling them to the ball. Popov argued that first possession controls, and
Hayashi believed the fan who ended up in possession owned the ball. They insulted one another as liars
and thieves. They both hired lawyers and filed suit in the California Superior Court.
Newspaper editorials, letters, talk show hosts, Barry Bonds, and several mediators all suggested that the
ball be sold and the proceeds be split by the men or that the money be given to charity. Neither Popov nor
Hayashi thought that evenly splitting what they were individually entitled to was fair, nor did they feel
that they could concede anything in light of the insults cast on them by the other. Following 18 months of
public bickering and litigation about what was fair, the judge ordered that the ball be sold and the
proceeds evenly split. Twenty months after it was hit into the bleachers, the ball, resting on black velvet
and encased in glass, was sold at auction to a comic book impresario for a final bid of $450,000. Popov and
Hayashi each received $225,000, minus auction expenses, and each incurred attorneys’ fees exceeding that
amount. Popov was sued by his attorney for fees and expenses of $473,530, and also for $19,000 by a law
professor who served as an expert witness. (The whole sorry story and background is captured in the 2004
film Up for Grabs.)
1. Did the fact that the entire home-run ball melee was televised and that both men made boastful and

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