May 19931 Lawyer Negotiations: Theories and Realities

Lawyer Negotiations : Theories and Realities -

What We Learn From Mediation
Carrie Menkel-Meadow *
Introduction
Interest in the science and a h of negotiation has grown exponentially in the last
ten years.’ A wide variety of disciplines, including law, political science, psy-
chology, economics, sociology and game theory have been used to try to develop
theoretical and empirical understandings of the negotiation process in a multitude
of settings. Efforts to understand and teach what lawyers actually do have facilitated
the study and teaching of negotiation.* The movement in the United States, the
United Kingdom3and elsewhere to foster ‘alternatives to litigati~n’~ as a way of
resolving disputes has also increased the focus on the primary dispute resolution
process of bilateral negotiation, particularly when conducted by party representatives
(there still appears to be less focus on direct party transactional negotiations). Despite
the vast outpouring of literature, theories about negotiation remain dichotomised
or at best trichotomised into models of distributive (competitive) bargaining,
integrative (problem-solving) bargaining or principled (or cooperative) bargaining.
These efforts at theory building often conflate analytic properties (the type of
substantive problem, the numbers of parties to the dispute, the voluntariness of the
negotiation process, the ‘stakes,’ etc5) and behavioural or stylistic advice (coopera-
tion, information sharing) - what at least one theoretician separates into the ‘science’
and the ‘art’ of negotiation.6Some negotiation analysts are concerned with specify-

*UCLA School of Law.

I thank the participants of the New York Clinical Theory Workshop for comments on this paper and I
thank Susan Gillig for her continuing support and co-teaching efforts in connection with the work described
herein.
1 See eg H. Peyton Young, Negotiation Analysis (Ann Arbor: University of Michigan Press, 1991);
J. William Breslin and Jeffrey Z. Rubin (eds), Negotiation Theory and Practice (Cambridge, Mass:
Harvard Program on Negotiation, 1991); David Lax and James K. Sebenius, Ihe Manager as Negotiator:
Bargaining for Cooperation and Competitive Gain (New York: Free Press, 1986); Roger Fisher and
William Ury, Getting to Yes: Negotiating Agreement Without Giving I n (New York: Penguin, 2nd
ed, 1992); Howard Raiffa, The Art and Science ofNegotiation (Cambridge, Mass: Harvard-Belknap
Press, 1982); see sources collected in Carrie Menkel-Meadow, ‘Legal Negotiation: Strategies in Search
of a Theory’ (1983) Am B F Res J 905, and Carrie Menkel-Meadow, ‘Toward Another View of Legal
Negotiation: The Structure of Problem-Solving’ (1984) 31 UCLA L Rev 754.
2 See eg Gerald Williams, Legal Negotiation and Settlement (St Paul, Minn: West Publishing Co, 1983);
Donald Gifford, Legal Negotiation (St Paul, Minn: West Publishing Co, 1989).
3 See eg Simon Roberts, ‘Mediation in the Lawyers’ Embrace’ (1992) 55 MLR 258.
4 See eg Frank Sander, Steven Goldberg and Nancy Rogers, Dispute Resolution (Boston, Mass: Little
Brown & Co, 2nd ed, 1992); Leonard Riskin and James Westbrook, Dispute Resolution andhwyers
(St Paul, Minn: West Publishing Co, 1987).
5 For a fuller description of contextual factors and analytic properties that may affect negotiation choices,
see Carrie Menkel-Meadow, ‘Legal Negotiation: A Study of Strategies in Search of a Theory’ (1983)
Am B F Res J 905, 927-8.
6 See Raiffa, id n 1.
@ The Modern Law Review Limited 1993 (MLR 56:3, May). Published by Blackwell
Publishers, 108 Cowley Road, Oxford OX4 IJF and 238 Main Street, Cambridge,
MA 02142, USA.

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lhe Modem Law Review [Vol. 56

ing the conditions under which particular models or theories work best.’ Others
are concerned with evaluation of negotiation as a process on dimensions of justice,
fairness and distributive equity,8 as compared to other processes in our legal
system.
In this paper I will review the basic elements of these alternative theories, efforts
to understand when they may analytically be applied and recent criticisms of these
models, particularly through empirical studies of lawyer negotiation practices that
have implicitly, if not explicitly, challenged the theoretical models. Next I will explore
what lawyers think they are doing when they negotiate and review what a variety
of recent studies of actual lawyer negotiating behaviour reveals about the negotiation
process.
Drawing from my own work in mediating and studying lawyer negotiation
processes in California courts, I will report on differences in conception and execution
of negotiation processes, which may be especially dependent on mandatory versus
voluntary settings. Finally, I will report on some recent work that has begun to
look at race, class and gender issues as they affect the dispute resolution and
transactional negotiation process. Given the private nature of most lawyer negotia-
tions, questions can be raised about the efficacy of lawyer negotiation and what
efforts can/should be made to educate and/or regulate lawyer behaviour (from both
micro-ethical and macro-justice perspectives).
Using the combinations of rigorous social scientific studies of negotiation and
mediation behaviour, with teaching about negotiation and mediation, we can seek
to narrow the gap between prescriptive theoretical models and the description of
what actually occurs in lawyer negotiations.
In this paper I report on some preliminary data of both party (litigants without
lawyers) and lawyer negotiation behaviour, taken from observations in real cases
being mediated by students in a mediation clinic. As a preliminary study, this report
should stimulate our thinking on both processual and substantive grounds. With
the focus on mediation skills, students observe the effects of particular behavioural
choices made in negotiation, not by themselves, but by others, and thus may be
less defensive in analysing and locating behavioural problems. Thus, a focus on
one set of skills or process produces learning about another - doing mediation teaches
us to be better negotiators at the micro behavioural level, just as judging teaches
us about litigating. At the same time, at the macro level, aggregating the individual
experiences of students observing and participating in negotiations allows them as
learners and us as researchers to reconceptualise the accuracy and explanatory power
of the models of lawyering we teach.
At UCLA we have focused on the generation and elaboration of models of
lawyering in trial a d v ~ c a c y interviewing
,~ and counselling, lo fact development’’

7 See eg Gary Lowenthal, ‘A General Theory of Negotiation Process, Strategy and Behavior’ (1982)
3 1 U Kansas L Rev 69; Donald Gifford, Legal Negotiations: 7heory and Applications (St Paul, Minn,
1989); id, ‘A Context Based Theory of Strategy Selection in Legal Negotiation’ (1985) 46 Ohio St LJ 41.
8 See eg Robert Condlin, ‘Cases on Both Sides: Patterns of Argument in Legal Dispute Negotiation’
(1985) 44 Maryland L Rev 65; David Luban, ‘The Quality of Justice’ (1989) 66 U Denver L Rev 381;
Owen Fiss, ‘Against Settlement’ (1984) 93 Yale LI 1073.
9 See Bergman, ‘Trial Advocacy in a Nutshell’; Moore, ‘Inferential Streams’ (1988) 34 UCLA L Rev.
10 See Binder and Price, Legal Interviewing and Counselling (1977); Binder, Bergman and Price, ‘Lawyers
as Counsellors: A Client-Centred Approach’ (St Paul, Minn: West Publishing Co, 1991).
11 Binder and Bergman, Fact Investigation (St Paul, Minn: West Publishing Co, 1987).

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May 19931 Lawyer Negotiations: lheories and Realities

and negotiation, with a view to providing prescriptions of how lawyers ought to

act. In my view, almost all of our models are normative and have not been rigorously
tested empirically for any accuracy in terms of how they describe the current work
~ aim to improve lawyering, yet, in doing so, we must take
of 1 a ~ y e r s . IWe
account of what lawyers are actually doing.
Learning from a clinically based study such as this, which confirms what other
researchers have found, that many negotiators persist in wasteful and counter-
productive adversarial or unnecessarily compromising behaviour,I4does not fully
answer the question about what we should do with our models. Normative questions
still abound for researchers and teachers - should our models conform to what
lawyers and teachers can expect to find ‘out there’ or should we continue to hope
that we can inoculate a new generation of lawyers to behave better, by which I mean
more effectively, compa~sionately~~ and efficiently, both for themselves and for
their clients.I6To put the question directly to myself, how can I persist in teaching
problem-solving negotiation when there is so much evidence of low intensity,
simplistic compromise bargaining? Is the law school clinic a real laboratory in that
theories are corrected by data that do not fit the model, or can the laboratory be
used to serve normative ends - to test and refine applications of a preferred theory?
Both as researchers and as practitioners we can learn to analyse the transferability
of skills from structured observational as well as experiential data. Since all clinical
learning proceeds from both a conceptual and behavioural base, it may be useful
to test different conceptual models in analysing lawyering behaviour. In short, by
acting as mediators, we observe negotiation behaviour on the part of both lawyers
and parties, and can feed back into systematic study and practice of negotiation
what we learn as mediators, facilitating the negotiation of others.

Models of Negotiation Behaviour - Perpetuation of Polarised

Models or the Move to Compromise
Bargaining theory, or negotiation models in lawyering, have long been characterised
by a polarity or dualistic categorisation alternatively construed as distributive-
integrative, competitive-cooperative or collaborative, adversarial-problem-solving,

12 Menkel-Meadow, ‘Toward Another View of Legal Negotiation: The Structure of Problem-Solving’

(1984) 31 UCLA L Rev 754.
13 Though all of us make assertions in our texts about what we think lawyers do and some of us do
cite empirical studies of lawyering in our particular fields.
14 I am using wasteful here in the game theoretic and economic sense of not producing efficient or wise
solutions; see eg Raiffa, The Art and Science of Negotiation (1983); Young, Negotiation Analysis (1991).
15 These are my normative goals (see Menkel-Meadow, ‘Is Altruism Possible in Lawyering?’ (1992)
8 Georgia St L Rev 385), not necessarily shared by others.
16 Those of us with strong political identifications from the early days of the clinical movement would
add that we seek to teach students to be effective lawyers for social change who consciously challenge
the status quo; see Bellow, ‘Turning Solutions into Problems: The Legal Aid Experience’ (1977)
4 National Legal Aid and Defender Association Briefcase 6 ; Tremblay, ‘Toward a Community-Based
Ethic for Legal Services Practice’ (1990) 37 UCLA L Rev 1101; White, ‘To Learn and To Teach,
Lessons from Diefontein’ (1988) Wisconsin L Rev 699; id, ‘Subordination, Rhetorical Skills and Sunday
Shoes: Notes from the Hearing of Mrs G’ (1990) 38 Buffalo L Rev 1; Lopez, ‘Rebellious Lawyering:
One Chicano’s Vision of Progressive Law Practice’ (Boulder, Colorado: Westview Press, 1992). For
an eloquent exegesis of the difficult allocation choices among clients and causes we must make in
political practices, see Tremblay, ‘Rebellious Lawyering, Regnant Lawyering Street Level Practice’
(1992) 43 Hastings LJ 947.

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lhe Modern Law Review [Vol. 56

positional-principled, claiming-creating value, demand-exchange, etc.17 Often

conflated in these polarised descriptions of the negotiation process are the separate
questions of what is at stake in the negotiation or what the goals should be of the
negotiation and the particular strategies or behavioural choices that might be made
to accomplish these goals.18 I often refer to this as the conceptualisation of the
problem (what are the goals, what is in dispute, what transaction is to be made,
what can be accomplished) versus the style, means or behaviours that may be called
upon to effectuate particular purposes. Thus, a lawyer may use a competitive
behaviour (the hiding of information) in order to creatively solve the problem (because
of a fear that the other side might not believe the information and react adversely).
Conversely, if one has an advantage by having the law or facts on one’s side, one
can appear to be cooperative and collaborative by fully sharing information with
the sole purpose of maximising individual gain.
As one game theorist has recently said, every negotiation consists of a rationality
problem - how will the problem rationally be solved - compounded by an often
arational behavioural problem - can the parties behave strategically with each other
to produce rational outcomes or will other ‘noise’ get in the way.19 Of course, the
game theorist or economist’s ‘noise’ is the stuff of which lawyering analysis consists.
We are concerned with all of the factors that will produce particular behavioural
choices, ranging from such facts as what res is in dispute, the relationship of the
parties, the routineness of the transaction or dispute, the power disparities of the
parties and/or lawyers, the role of law and facts (the bargaining endowments20),
the public or private nature of the negotiation, accountability to and size of one’s
constituency and the alternatives to a negotiated agreement, to name just a few of
the possible factors which can affect negotiation behavioural choices.21
In an ideal world (the one in which models are made), each behavioural choice
would have a fully articulated rationale within a larger plan to accomplish particular
results, taking account of the strategic interaction with the other.22Distributive
bargaining, for example, is most appropriate in two party, single issue disputes,

17 For some of the sources of these dichotomous characterisations, see eg Bellow and Moulton, The
Lawyering Process (New York: Foundation Press, 1981); Lowenthal, ‘A General Theory of Negotiation
Process, Strategy and Behavior’ (1982) 31 U Kansas L Rev 69; Raiffa, The Art and Science of
Negotiation (1983);Fisher and Ury, Gerting To Yes (1983); Menkel-Meadow, ‘Toward Another Theory
of Legal Negotiation’ (1984); Lax and Sebenius, The Manager as Negotiator (1988); Gifford, Legal
Negotiation: Theory and Applicarions (1989); Williams, Legal Negotiation and Settlement (1984);
Condlin, ‘Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role’
(1992) 5 1 Maryland L Rev 1.
18 See Menkel-Meadow, supra n 1, at 818 (fourfold table of ends and means).
19 See Young, Negotiarion Analysis (1991).
20 See Mnookin and Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979)
88 Yale LJ 950.
21 This is only a partial listing of the factors or variables that might affect negotiation behavioural choices;
see Menkel-Meadow, ‘Legal Negotiation: A Study of Strategies in Search of a Theory’ (1983) Am B
Res J 905, at 927, 928 for a partial specification of factors that might usefully be employed to test
when particular models of negotiation are used. It is obviously difficult to construct a study that could
measure all of these variables simultaneously in cases that are sufficiently similar to provide statistically
significant results, but I am painfully aware of few studies that have attempted to test even a few
of these variables as affecting negotiation choices. For some discussion of how difficult it is to measure
varieties of dispute processing choices, see eg Esser, ‘Evaluations of Dispute Processing: We Do
Not Know What We Think and We Do Not Think What We Know’ (1989) 66 Denver L Rev 499;
Tyler, ‘The Quality of Dispute Resolution Procedures and Outcomes: Measurement Problems and
Possibilities’ (1989) 66 Denver L Rev 419.
22 Goffman, Strategic Interaction (1969); Schelling, The Strategy of Conflicr (Cambridge: Harvard
University Press, 1960).

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May 19931 Lawyer Negotiations: Theories and Realities

where there is a scarce or indivisible res.U Integrative bargaining works best when
the res in dispute can be expanded, such as by exploring the who (parties), what
(things in dispute), when (timing of agreement and pay-offs), where (jurisdictional
movement) or how (cash, trades, ‘real’ items of the Or, as some
theorists argue, every negotiation will consist of opportunities for expanding value
that will in turn eventually have to be divided - ‘creating and claiming value.’25
In the real world, beyond Prisoner’s Dilemma games26 and clean abstract models
of negotiation, behavioural choices in legal negotiation are often made in the moment,
on the phone, without much forethought and deliberation. Given the legal culture
of adversaries and zealous protection of the client’s intere~t,~’ negotiation behav-
iours often serve as a quick ‘in your face’ response to the other side’s opening
salvo.
Recently, several negotiation theorists of practice2*have attempted to soften the
dichotomous distinctionsby suggesting continuums of models and behavioural choices
or suggesting that all negotiations consist of elements of both polaritie~.~~ Lax and
Sebenius suggest that almost all negotiations consist of problems of creating and
claiming value where the negotiators may initially seek to expand resources or seek
complementary ends, but at some point will have to claim some finite value.3o
Even Roger Fisher, co-author of the popular negotiation manual, Getting To Yes,
has acknowledged that there may be problems of negotiation that will exhaust the
strategies of principled negotiation and objective resolutions, though like me, he
prefers to think of all negotiation problems as having some possibilities for creative
solutions or meeting both parties’ underlying needs.31
Donald Gifford and Gary Lowenthal both attempt to typologise particular case
types that might fall into mixed categories of integrative, distributive and cooperative
bargaining, seeing in criminal plea bargaining negotiations mixed games of coopera-
tive adversarialness due to the ongoing and repetitive nature of the interactions of
the regular criminal bar.32

23 S e e Raiffa, supra n 1, at 35-133.

24 See Menkel-Meadow, ‘Toward Another View of Legal Negotiation,’ supra n 1.
25 See Lax and Sebenius, supra n 1, at 29-46; see also P.H. Gulliver, Disputes and Negotiations: A
Cross-Cultural Perspective (New York: Academic Press, 1979).
26 See eg Raiffa, supra n 1; 0. Young, Bargaining: Formal Theories of Negotiation (1975); Axelrod,
The Evolution of Cooperation (New York: Basic Books, 1985).
27 See Code of Professional Responsibility, Canon 7, replaced by Rule 1.2, Model Rules of Professional
Conduct (ABA, 1983). Is it significant that ‘zeal’ is reduced to a comment rather than placed in the
text of the Model Rules?
28 The Negotiation Journal (a product of the Harvard Negotiation Project, published by Plenum Press
in New York) is an excellent example of theory-in-practice. It publishes short pieces, both of theory
and of application of negotiation practice, that attempt to illuminate general theories and detailed reports
of actud negotiation problems, not unlike the ‘case rounds’ approach to professional education that
is more common in medicine.
29 See eg Lax and Sebenius, The Manager as Negotiator (1987); Gifford, supra n 16; Lowenthal, supra
n 7. Earlier theorists who tried to make this point include Gulliver, ‘Disputes and Negotiations’ (1979);
Eisenberg, ‘Private Ordering Through Negotiation: Dispute Settlement and Rule-making’ (1976) Harv
L Rev 637; Pruitt, Negotiation Behavior (New York: Academic Press, 1981).
30 Lax and Sebenius, supra n 1, Ch 3.
31 See Roger Fisher, ‘Comment’ (1984) 34 J Leg Ed 115.
32 Lowenthal, supra n 7; Gifford, supra n 7, at 17; see also Gifford, ‘A Context-Based Theory of Strategy
Selection in Legal Negotiation’ (1985) 46 Ohio St LJ 41. See also Heumann, ‘Plea Bargaining: The
Experiences of Prosecutors, Judges and Defense Attorneys’ (Chicago: University of Chicago Press,
1977).

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7he Modern Law Review [Vol. 56

Robert Condlin and Eleanor Holmes Norton see the negotiator’s dilemma as
steering between the demands of the profession’s ethics codes and the practical
requirements of ongoing negotiators to consider both their long-term reputations
with each other and short-term reputations with their clients. Thus, for Condlin,
there is a tension between the practical pressures to be cooperative in ongoing legal
relations and the ethical codes’ requirements of individual gain-seeking zealous
repre~entation.~~ Condlin suggests, without empirical support, that the ‘move
toward cooperativeness’ extends beyond behaviour to a substantive commitment
to being ‘fair’ or ‘adhering to authoritative substantive norms.’34For Norton, the
internal structure of negotiation leads to a self-enforcing level of candour and solution-
seeking behaviour on the part of the negotiators to maintain the stability both of
individual negotiation interactions and the ongoing stability of the process as a whole
among legal negotiator^.^^
Recently, as part of the larger intellectual and political movements to recognise
the diversity of our knowledge base and the people who produce our knowledge,36
efforts to understand how negotiation models may be different for various kinds
of negotiators has inspired a literature, both theoretical and empirical, which seeks
to understand the effects of gender, race, ethnicity and power balances in negotiation
and other dispute resolution activities. Ian Ayres has demonstrated that widespread
discrimination in the pricing and negotiation of cars in the retail dealers’ market
disadvantages women and non-whites, in the assumptions made about them by
predominantly white male car salesmen.37Others have begun to explore the effects
of particular process choices for women, minorities and the reminding us
that post-modernism has come to negotiation theory as well - who we are clearly
structures how we perform lawyering and negotiating tasks, and over-generalised
meta-theories may have to give way to more specific contextualised micro-
explanations of lawyering behaviour .39

33 Condlin, supra n 17.

34 id at 26.
35 See Norton, ‘Bargaining and the Ethics of Process’ (1989) NYU L Rev 493; but cf Wetlaufer, ‘The
Ethics of Lying in Negotiations’ (1990) 75 Iowa L Rev 1219; White, Machiavelli and the Bar, ‘Ethical
Limitations on Lying in Negotiation’ (1980) Am B F Res J 926; Guernsey, ‘Truthfulness in Negotiation’
(1982) 17 U Rich L Rev 101.
36 See eg Sandra Harding, Whose Knowledge, Whose Science? (Ithaca, New York: Cornell University
Press, 1991); id, The Science Question in Feminism (Ithaca, New York, 1985).
37 Ayres, ‘Fair Driving: Gender and Race Discrimination in Retail Car Negotiations’ (1991) 104 Haw
L Rev 817. Ayres’ study employs the methodology of fair housing - the use of mixed race and gender
‘testers’ who attempt to negotiate deals.
38 See eg Kolb, ‘Her Place at the Table: Gender and Negotiation’ in Breslin and Rubin (eds), Negotiafion:
Theory and Practice (Cambridge, Mass: Harvard Negotiation Project, 1991); Pruitt and Carnevale,
‘Gender Effects in Negotiation: Constituent Surveillance and Contentious Behavior’ (1986) 22 J Experi-
mental SOCPsych 264; Craver, ‘The Impact of Gender on Clinical Negotiation Achievement’ (1990)
6 Ohio St J Dispute Res 1; Lloyd Burton, Larry Farmer, Elizabeth Gee, Lorie Johnson and Gerald
Williams, ‘Feminist Theory, Professional Ethics and Gender-Related Distinctions in Attorney
Negotiating Styles’ (1991) 2 J Dispute Res 199; Grillo, ‘Mediation: Process Dangers for Women’
(1990) 100 Yale LJ;Delgado el al, ‘Fairness and Formality: Minimizing the Risk of Prejudice in
Alternative Dispute Resolution’ (1985) Wisc L Rev 1359; Sampson and Kardush, ‘Age, Sex, Class
and Race Differences in Response to a Two-Person Non-Zero-Sum Game’ (1965) 9 J Conflict Res 212;
Singer, Lewis, Houseman and Singer, ‘ADR and the Poor - Parts Land 11’ (1992) 26 Clearinghouse
Review, 2 and 288; see generally Brown and Rubin, The Social Psychology ofBargaining (New York:
Academic Press, 1975).
39 For an excellent discussion of how post-modernism has affected the development of social science
theory and practice, see Rosenau, Post-Modernism and the Social Sciences (Princeton: Princeton
University Press, 1992). For some efforts to incorporate post-modern theory into lawyering theory,
see Symposium, ‘The Theoretics of Practice’ (1992) 43 Hastings LJ 717.

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May 19931 Lawyer Negotiations: Theories and Realities

Thus, to summarise, while conventional treatments of negotiation describe

adversarial or distributive bargainers as those who seek to maximise individual gain,
usually using a variety of competitive tactics including dissembling, lying,
exaggerating claims and making threats, and problem-solvers as those who seek
to expand pies, share information, seek complementary goals and meet the mutual
and joint needs of all parties; more recent descriptions of the negotiation process
seem to ‘gravitate toward the mean,’ suggesting a compromiser’s route to a hybrid
of negotiation models.40For me the conceptual ‘compromise’ is as dangerous as
compromise in neg~tiation,~’ by blunting what the parties really require and by
meeting in a middle that may not accurately reflect the appropriate or actual choices
which are both available and best for a wide range of parties and lawyers.42
What I have criticised about conventional negotiation theory and practice is that
traditional negotiation techniques often result in circumscribed results by modelling
themselves on what the ‘limited remedial imagination’ of courts or form contract
provisions will allow. In conventional adversarial negotiation, the parties most often
seek a compromise between two extremely expressed poles of what they think they
can be awarded from the court or what common business practice will permit.43
The danger of compromise here is that stylised offers, most often monetised in
litigation, hide the underlying needs, interests or goals of the parties. As my mother
learned when cutting the last piece of chocolate cake for my brother and me, if
I wanted the frosting and my brother the cake, we would do better with a horizontal
cut than with the usual vertical ‘split the difference’ approach. Problem-solving
negotiators see compromise as an unattractive solution, not as a goal to be pursued.
By identifying underlying needs and interests, the parties may learn the important
psychological fact44 that if people have complementary, rather than identical, value
systems, they will be able to achieve joint gains, without having to give anything
up. Thus, in my model of problem-solving negotiation, I ask negotiators to think
of categories of human needs - legal, economic, social, psychological, religious,
moral and political - to be considered in each case to maximise the number of
interests that might be pursued and thus to avoid, as much as possible, having to
divide single conflicting demands. In seeking to promote joint gain, rather than
compromise, problem-solving negotiators are asked to pursue ways of expanding
the res before dividing it, by exploring answers to the simple questions of any dispute
- what is in dispute (can the thing be transformed, traded, or expanded), when

40 This move in the academic an scholarly literature is paralleled in the popular literature. See the movement
from such books as Herb Cohen, ‘You Can Negotiate Anything: Getting What You Want’ (Secaucus,
NJ: Lyle Stuart Inc, 1980); James C. Freund, ‘Smart Negotiating’ (New York: Law & Business Inc,
1992).
41 See my thoughts on the dangers of compromise in Menkel-Meadow, supra n 16, at 771; see also
NOMOS XII, ‘Compromise in Ethics, Law and Politics’ edited by J. Roland Pennock and John W.
Chapman (New York: New York University Press, 1979).
42 My own problem-solving theory has been criticised as suggesting that meeting the parties’ needs is
a therapeutic goal rather than one that seeks justice; see Sarat and Silbey, ‘Dispute Processing in Law
and Legal Scholarship: From Institutional Critique to the Reconstructionof the Judicial Subject’ (1989)
66 Denver LJ,which strikes me as insensitive to the very goals suggested by a problem-solving approach
- that neither side settle for something which is not considered fair and just to that party, both in
legal and in Pareto-optimal terms.
43 See Menkel-Meadow, ‘Toward a Theory of Problem-Solving,’ supra n 1, at 766-775.
44 This principle is attributed to the Homans Theorem, that different parties actually value different items
differently, rather than in the same way, so that differences may be exploited for Pareto optimal trades,
rather than having to share and divide similarly valued items. See I. William Zartman and Maureen
Berman, ‘The Practical Negotiator’ (New Haven: Yale University Press, 1982), at 13-14 citing George
Homans, ‘Social Behavior’ (New York: Harcourt, Brace & Jovanovich, 1961).

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The Modem Law Review [Vol. 56

must settlement occur (can timing be exploited for mutual gain and tax benefits),
who is involved (can more parties be brought in to expand the resources available),
how can the dispute be settled (are there less conventional, non-monetary ways of
settling the dispute) and where must the dispute be settled (exploiting other fora
of dispute resolution and jurisdictional variations) .45
Critics of such approaches to negotiation are concerned that a focus on parties’
needs and interests may avoid resolving disputes on the basis of important legal and
political principles, or that all needs will be considered legitimate, unjudged by moral,
legal or political standards. Further, some critics see an approach to solving party
needs as therapeutic rather than jurisprudential. My own approach to problem-solving
negotiation takes account of these critiques by making political and legal concerns
part of the calculus of what should be negotiated and by recognising that some things
are simply not negotiable.* For some, the entire process of negotiation is criticised
on macro-justice grounds.

Critiques of Negotiation as an Appropriate Dispute

Resolution Process
For many critics the negotiation process is itself jurisprudentially suspect because
of the tendency to compromise important legal or political principles4’or because
negotiation and other forms of dispute resolution blunt or dull more contentious
or organised efforts to change laws or social condition^.^^ Critics such as David
Luban and Robert Condlin decry the ‘lawlessness’ of negotiated agreements that
do not track the legal entitlements or endowments that others, like Mnookin and
Kornhau~er,~~ believe set the legal parameters of agreements. Some critics believe
that removing too many cases through negotiated settlements will leave an inadequate
base of cases from which the common law system develops its precedential rulings.
Others suggest that the negotiator’s practical requirements to consider the ‘needs’
or ‘interests’ of parties results in a ‘psychologising’of what should be a principled,
legal and political p o r c e ~ s . ~ ~
If private negotiation is to be criticised for compromising important legal interests
then a fortiori court efforts to promote or mandate private settlements within the
public arena are anathema to many.s’
Yet most of these critiques ignore the fact that ours is a party-initiated system
- one in which the parties may choose to remove their disputes from the formal

45 Menkel-Meadow, supra, n 1, at 794-813.

46 See Menkel-Meadow, supra n 1, at 829-840 (suggesting that inequalities of bargaining power and
the need for precedent in some cases suggests that not all cases are ripe for negotiation).
47 See eg Luban, Condlin and Fiss, supra n 8.
48 See the collection of arguments in Richard Abel (ed), The Politics of Informal Justice, vols I and I1
(New York: Acadmic Press, 1982).
49 supra n 2 0 .
50 See eg Susan Silbey and Austin Sarat, ‘Dispute Processing in Law and Legal Scholarship: From
Institutional Critique to the Reconstruction of the Juridical Subject’ (1989) 66 U Denver L Rev 437.
51 See eg Judith Resnik, ‘Managerial Judges’ (1982) 96 Harv L Rev 76; Harry Edwards, ‘Alternative
Dispute Resolution: Panacea or Anathema?’ (1986) 99 Harv L Rev 668; Carrie Menkel-Meadow,
‘Pursuing Settlement in an Adversary Culture: The Law of ADR’ (1991) 19 Fla St L Rev 1; id, ‘For
and Against Settlement: The Uses and Abuses of the Mandatory Settlement Conference’ (1985)
33 UCLA L Rev 485; Marc Galanter, ‘The Emergence of the Judge as a Mediator in Civil Cases’
(1986) 69 Judicature 257.

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May 19931 Lawyer Negotiations: lheories and Realities

legal system at any time should they choose to negotiate privately. Thus, the key
to understanding the appropriateness of any negotiation process is whether justice
is ill-served by the processes the parties choose, be they public litigation or private
negotiation. Difficulties abound here - what are the appropriate baseline measures
of what is a good settlement or a fair process? Can the parties or their lawyers make
an intelligent choice of process? Do they understand enough about the differences
between and among processes? Are the lawyers sufficiently skilled at either negotia-
tion or advocative activities or both to choose the process that will work most
effectively for their clients? Most significantly, which processes will produce the
‘best’ solution?5*

What Legal Negotiators Actually Do: The Limits of the Real World
Despite the growing richness and increasingly subtle texture of more abstract writings
about negotiation, empirical work on negotiation in a variety of legal contexts remains
relatively paltry, but is depressingly consistent. The picture that is painted of actual
negotiation bears little resemblance to the more nuanced discussions of goals and
means alluded to above.
As one of the earliest students of at least one negotiation context, auto accidents,
Laurence Ross has demonstrated, often insurance adjustors will settle quickly simply
to ‘move their dockets,’ rather than to use particular principles, or even to save
insurance dollars.53 In a more recent study of tort and insurance bargaining in
England, Hazel Genn found that most negotiations were low intensity (settled on
the basis of first offers) and lawyers who engaged in hard bargaining achieved higher
settlements than those who cooperated, though cooperation was a more common
strategy, particularly where plaintiffs’ solicitors felt themselves to be in disadvan-
tageous positions in negotiation with repeat player insurance claims adjusters.%
Similarly, in an analysis of the Civil Litigation Research Project, data taken from
state and federal court cases in five American federal judicial districts, political
scientist Herbert Kritzer found that most negotiations were characterised by low
intensity (small numbers of contacts and offers between parties) and little bargaining
at all. Most disputes were considered to be disputes about money (with the exception
of civil rights cases and several other classes of cases where issues of longer term
relationships were implicated).55 Kritzer’s analysis also reveals structural factors
that may influence the use of more conventional negotiation strategies - the fee
structure of the lawyer. Where the lawyer is paid on a contingent basis, the incentive

52 ‘Best’ solutions can be measured from any number of perspectives. Fisher and Ury suggest a ‘wise,
efficient and amicable’ outcome, supra n 1; Raiffa suggests seeking a Pareto optimal solution, supra
n 1, and I suggest seeking a ‘quality’ solution that meets the various needs of the party, supra n 1.
For some efforts to analyse the difficulty of measuring the quality of dispute resolution outcomes
empirically, see John Esser, ‘Evaluations of Dispute brocessing: We Do Not Know What We Think
and We Do Not Think What We Know’ (1989) 66 U Denver L Rev 499. See also Tom Tyler, ‘The
Quality of Dispute Resolution Processes and Outcomes: Measurement Problems and Possibilities’
(1989) 66 U Denver L Rev 419.
53 Ross, ‘Settled Out of Court: The Social Process of Insurance Claims Adjustment’ (Chicago: Aldine
Press, 2nd ed, 1980).
54 H. Genn, ‘Hard Bargaining: Out of Court Settlement in Personal Injury Actions’ (Oxford: Clarendon
Press, 1987).
55 H. Kritzer, ‘Let’s Make a Deal: Understanding the Negotiation Process in Ordinary Litigation’ (Madison,
Wisc: University of Wisconsin Press, 1990).

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Zhe Modern Law Review [Vol. 56

to monetise the issues in dispute for a simple cash payment will be strong and may
inhibit some efforts at more creative or non-monetary
In a rigorous attempt at social scientific study of lawyer negotiation practices in
New Jersey, legal clinician Jonathan Hyman, working with political scientist Milton
Heumann, has begun to uncover similar patterns of low intensity, conventional
patterns of negotiation behaviour. In a preliminary report of their study involving
interviews with lawyers and observations of judge-hosted settlement conference^,'^
Hyman and Heumann found little problem-solving behaviour. Like Kritzer, they
found that tort cases were least likely to utilise non-monetary solutions as cases
were monetised and routinised in t ~ e a t m e n tLike
. ~ ~ Genn, these researchers found
that negotiators used familiar habits of mind and practices in negotiating, rather
than focusing on the individualised needs and interests of particular clients. These
researchers, however, attribute such behaviour not to the power imbalances suggested
by Genn, but rather to social psychological forces that lead lawyers to be risk averse
and ‘lazy’ with respect to case preparation and management. Many lawyers expressed
interest in, but ignorance about, other methods of negotiating. They saw little in
the way of incentives to bargain in any but the most ‘efficient’ (least amount of
work) way. There was little evidence that lawyers engaged in the sort of strategic
interaction attributed to more competitive forms of negotiation.
These findings are consistent with earlier work done by Gerald Williams,
demonstrating that lawyers utilise two styles of negotiation but that cooperation is
more common, even if both cooperative and competitive styles may be considered
e f f e c t i ~ e .Similarly,
~~ two separate groups of researchers looking at divorce
lawyers found little evidence of hard bargaining in that context, but instead found
a desire to settle cases quickly for the ‘going rate’ and not to bargain too hard,
especially in contexts in which the lawyers were repeat players with each other and
sought to reach ‘standardised solutions.’a In the divorce cases in particular,
lawyers’ roles were seen as ‘cooling out’ clients not to expect too much from the
legal system, both in terms of legal and economic entitlements as well as social,
emotional and moral satisfaction.6’
At the other end of the legal spectrum, in terms of case size and stake, Janet Cooper
Alexander recently completed a study of large, class action securities cases in which
she demonstrated that settlement value could be predicted as a function of a fraction

56 id Ch 5 ; see also Kritzer, ‘Fee Arrangements and Negotiation: A Research Note’ (1987) 21 LSR 341,
in my view the most trenchant criticism of the problem-solving model to date.
57 The role of judges as mediators in settlement conferences is another issue subject to policy and social
scientific debate that might usefully be studied by clinicians. For some discussion of the issues implicated
in mandating negotiations in the presence of a judge or other settlement officer, see eg Galanter, ‘A
Settlement Judge . . . Not a Trial Judge: Judicial Mediation in the United States’ (1985) 12 JLS 1;
Menkel-Meadow, ‘For and Against Settlement: The Mandatory Settlement Conference’ (1985)
33 UCLA L Rev 485.
58 Hyman and Heumann, ‘Lawyers as Problem-Solvers: Alternative Methods of Negotiation in the
Settlement of Civil Litigation,’ paper presented at the 1992 Law and Society Association Meeting,
Philadelphia, Pa.
59 Gerald Williams, ‘Legal Negotiation and Settlement’ (1983).
60 See eg Erlanger, Chambliss and Melli, ‘Participation and Flexibility in Informal Processes: Cautions
from the Divorce Context’ (1987) 21 LSR 563; Felstiner and Sarat, ‘Law and Strategy in the Divorce
Lawyer’s Office’ (1986) 20 LSR 93.
61 Preliminary reports of yet another study of divorce practice indicates more variation in negotiation
activities dependent on the gender of the lawyers and the local legal cultures, as determined by utilisation
of mediation; see Richard Maiman, Lynn Mather and Craig McEwen, ‘Gender and Specialization
in the Practice of Divorce Law’ (1992) 44 Maine L Rev 39; see also McEwen, Maiman and Mather,
‘Divorce Lawyers in Maine and New Hampshire,’ paper presented at the 1992 Law and Society
Association.

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May 19931 Lawyer Negotiations: neories and Realities

of the plaintiffs’ demands as cases.settled for nuisance value, transaction costs or

other economic features, including lawyer fee incentives, bearing little relation to
the legal merits of the case.62Alexander’s concerns that cases settle for reasons
that have nothing to do with the moral and legal standards developed in the regulatory
schemes echoes Owen Fiss’s concerns that too much unprincipled settlement may
inevitably erode the base on which our legal precedents are d e t e ~ m i n e dIf. ~Fiss
~
and Alexander are right about big or public cases, and Kritzer, Hyman and Heumann,
and Genn are right about ordinary civil litigation negotiation,@ and Sarat and
Felstiner and Erlanger, Chambliss and Melli are right about divorce, that cases settle
quickly, with little negotiation intensity or bargaining of either a principled or
unprincipled nature, as both sides try to cut a quick deal that is often ‘fairer’ to
the lawyer’s payment incentives than to particular clients, then Mnookin and
Kornhauser may be wrong about how law acts as a bargaining endowment or limit
on what happens in a negotiation. Indeed, Gross and Syverud suggest that contextual
and relational factors between the parties are far better predictors of outcomes than
legal endowments.65
The commonalities in most, though not all, of these studies is their methodological
dependence on after-the-fact self reports of lawyers engaged in now completed
negotiations.66If we are really interested in understanding the micro-choices, as
well as macro decisions made with respect to negotiation, we will have to conduct
more observational Herein lies the irony of the present preliminary
study.

Mandatory Mediation as a Window on Negotiation Behaviour

Negotiators have been notoriously difficult to study. As the studies referred to
above make clear, the most common way to obtain information about negotiation
is to interview lawyers after the fact, often with self-serving post hoc reports.68
Observational studies of actual negotiations are quite rare.69

62 Alexander, ‘Do the Merits Matter? A Study of Settlements in Securities Class Actions’ (1991) 43 Stan
L Rev 497.
63 Fiss, ‘Against Settlement’ (1984) 93 Yale LT 1072.
64 Or ‘litigotiation’ as Marc Galanter calls it; see ‘Worlds of Deals: Using Negotiation to Teach About
Legal Process’ (1984) 34 J Legal Education 268.
65 In what I consider to be among the most sophisticated studies of negotiation outcomes based on aggregate
case data of cases tried and settled (529 state cases), Gross and Syverud have recently demonstrated
different settlement patterns in different kinds of case types; see ‘Getting to No: A Study of Settlement
Negotiations and the Settlement of Cases for Trial’ (1991) 90 Mich L Rev 319 (ie plaintiffs did less
well in tort cases than commercial cases). Using a historical framework, Edward Purcell has recently
demonstrated that parties can sometimes ‘control’ the legal bargaining chips they bring to a negotiation,
based on their pre-contractual power to insist on particular provisions (as in consumer cases) or on
their ability to choose the legal forum in which their claims can be heard, either by trial or other
dispute resolution treatment: Edward Purcell, Lirigarion and Inequality: Federal Diversity Jurisdicrion
in Industrial America, 1870-1958 (New York, Oxford: Oxford University Press, 1992).
66 Some of the above cited studies did have observational components, eg Hyman and Heumann, Sarat
and Felstiner.
67 This is where clinicians have easy access to their own cases to be systematically studied, as well as
a greater likelihood of negotiating consent from other members of the Bar.
68 Kritzer, for example, notes that often plaintiff and defendant lawyer reports of offer structures do
not match; see Kritzer, supra n 56, at 20.
69 One of the most sophisticated efforts to understand lawyer negotiation behaviour was conducted by
a clinician, Steven Pepe, now a US Magistrate, and was never fully published.

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The Modern Law Review [Vol. 56

Ironically, court efforts to reduce heavy caseloads, coupled with the clinical
movement’s embrace of alternative dispute r e ~ o l u t i o n ,have
~ ~ provided a rare
opportunity for us to study negotiation - by practicing mediation. Mediation, of
course, like negotiation, has been the focus of both academic and practitioner efforts
at definition and e~aluation.~’ In its purest form mediation is the facilitation, by
a third party, of a negotiated agreement by two or more disputants or their represen-
tatives in which the mediator does not decide the but facilitates com-
munication and problem-solving by the parties. Mediation has been supported on
both processual grounds - that it empowers parties and improves communication,
especially in continuing relations - and substantive grounds, that it increases the
analytic likelihood of Pareto-optimal solutions by increasing the probability that
more information will be shared with third party fa~ilitation.~~
The adoption of mediation programmes by both American state and federal courts
has been controver~ial7~ for many reasons including the distortion of the pure form
of mediation, the lack of training and standards for mostly volunteer mediators,
the compulsory nature of some mediation and the inappropriate allocation of some
cases to mediati0n.~5Nevertheless, throughout the United States, legal clinicians
have been drawn to the opportunity to teach students how to resolve disputes by
creating mediation clinics and often serving as the mediators in court sponsored
mediation programmes.76 While the teaching of mediation is itself an important and
complicated subject (and is the focus of other papers by other writers including the

70 This is an interesting and complicated story. As I have written elsewhere, the ADR movement has
at least two contradictory historical impulses - the search for increased party participation and control
over the dispute, manifested by a 1960s communitarian and empowerment strategy; see Menkel-
Meadow, ‘Dispute Resolution: The Periphery Becomes the Core’ (1986) 69 Judicature 300; Menkel-
Meadow, ‘Pursuing Settlement in an Adversary Culture’ (1991) 19 Fla St L Rev 1. A remarkably
large number of clinicians have moved into the teaching of alternative dispute resolution. Why? What
are the underlying impulses in this move? What are the effects on students, clients? What are the
underlying values of this coming together of two movements? Have clinicians been co-opted by this
movement?
71 For the classic formulation of the role of mediation in a legal system, see Lon Fuller, ‘Mediation:
Its Form and Its Functions’ (1971) Southern California L Rev 305. For recent efforts to provide clinical
training in mediation, see Folberg and Taylor, ‘Mediation: A Comprehensive Guide to Resolving
Conflicts Without Litigation’ (San Francisco: Jossey-Bass, 1984); Moore, ‘Mediation: Its Forms and
Processes’ (1988); Rogers and Salem, ‘A Student’s Guide to Mediation’ (New York: Matthew Bender,
1986); Rogers and McEwen, ‘Mediation: Policy and Practice’ (Rochester, NY: Lawyer’s Coop Pub,
1989).
72 Decisions by third parties transform the mediation into arbitration, or its hybrid form of med-arb;
see Goldberg, Sander and Rogers, ‘Dispute Resolution’ (2nd ed, 1992). Unfortunately, in actual practice,
many mediators blur the distinction and heavily impose themselves in both the process and substantive
dimensions of the dispute resolution process. At least one mediator is quite self-conscious of this choice;
Kenneth Feinberg, ‘A Guide to Mediation’ (unpublished memorandum, 1987). Feinberg, who was
court appointed master in the Agent Orange case, utilises a shuttle diplomacy approach to mediating
large and complex disputes in which the parties are seldom in the same room. It may not be pure
mediation, but Feinberg is very effective at what he does.
73 See eg Raiffa, ‘Post-Settlement Settlements’ (1985) 1 Negotiation J 9-12.
14 See eg Menkel-Meadow, supra n 70.
75 Among the policy disputes here are whether all cases belong in mediation, which many litigators view
as a required ‘compromise’ rather than a problem-solving process, whether compulsory process is
appropriate, access and payment of mediation services, dealing with power imbalances between the
parties. See eg Committee on Public Policy and ADR, Society of Professionals in Dispute Resolution,
1991; Report of the ACLU Committee on ADk (1991). See also Kenneth Kressel, Dean Pruitt and
Associates, Mediarim Research (San Francisco, London: Jossey-Bass Publishers, 1989).
76 At this writing I am aware of mediation clinical courses (with live-client components either at the
law school or in the courts) at Columbia, Denver, New Mexico, UCLA, Pepperdine, Willamette,
George Mason, Ohio State, U San Diego, Missouri-Columbia, Houston, Florida State and George
Washington law schools.

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May 19931 Lawyer Negotiations: lheories and Realities

present author), I focus here instead on what serving as mediators can teach us about
negotiation.

Methods and Sample

This preliminary study reports on what we have learned about negotiation through
work in the UCLA mediation clinic. In a course consisting of twelve students and
two in~tructors,7~ students mediated a total of thirty-six disputes, randomly selected
from cases available for a two month period in the spring of 1992. Structured
variations of student experience allowed observation of a wide variety of mediation
case type experiences - unfortunately, this also means that cell sizes are too small
for statistically significant findings. Mediators served in two different court settings,
after receiving approximately forty-five hours of classroom and simulation instruction,
including one weekend intensive workshop and two videotaped simulations of
mediations with community people serving as disputants.
Mediation cases were obtained from two court settings. In the local Municipal
Court (in the City of Santa Monica), which has a jurisdictional limit of $50,000
in controversy, mediation is offered as a voluntary service to parties who appear
at morning civil calendar calls. Whether the parties elect to mediate or not depends
a great deal on the sitting calendar judge’s presentation of the option and merits
of mediation. There is a wide variation in the attitudes and support of judges for
mediation. At the time this study was conducted, the sitting judge was a proponent
of alternative dispute resolution and strongly promoted ‘voluntary’ mediation to
the parties by suggesting both that they might resolve the dispute with ‘better’
solutions, but also that the calendar was long and they might not get a trial very
quickly. The range of cases included all civil matters, but in this court there is a
high incidence of unlawful detainer (landlord-tenant cases) matters that served as
the bulk of our cases. In this setting mediation is usually provided by Dispute
Resolution Services, an organisation funded by the Los Angeles County Bar Asso-
ciation, which provides volunteer mediatiors (not all of whom are lawyers) who
sit in the courtroom and are assigned cases on calendar call days. In this setting
there are many unrepresented parties so our mediations involved negotiations between
unrepresented parties, between represented parties on both sides and cases where
only one side had an attorney. Agreements achieved by mediation were entered
as court orders.
In the second court setting, the Superior Court of Los Angeles County, mediation
is slightly less ‘voluntary.’ This court of general civil jurisdiction now requires all
cases below a certain monetary value to attend an arbitration hearing (the arbitrators
are lawyers). If the parties are unsatisfied with the arbitration award they may appeal
for a trial de ~ U O V as
O of right, but are required to attend a mediation session before
they can move on to trial. In this setting the mediators are volunteer lawyers, trained
and supervised by Dispute Resolution Services. Because the mediators in this setting
are themselves usually repeat player litigators, it was our observation (confirmed
by the lawyers and parties involved in this setting) that the standard model of
mediation was to seek compromise amounts of the arbitration award so as to avoid
trial. Our student mediators used a different, more participatory and solution seeking
model that most lawyers reported was more interesting and likely to lead to more
individually tailored solutions, but more time-consuming and unlikely to work if

77 The second instructor was Susan Gillig, Assistant Dean for Clinical Programs at UCLA Law School.

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The Modern Law Review [Vol. 56

one party remained adamantly committed to a particular monetary amount. This

setting is a severe test of mediation and negotiation behaviour because of both the
mandatory nature of the mediation and the constraints placed on it by having an
arbitration award strongly colour the parties’ bargaining expectations. In this setting
all parties were represented so that the negotiation behaviour we observed and
facilitated consisted entirely of lawyer negotiation. Parties with authority to settle
are required to attend these sessions, however, so that all mediations included both
counsel and parties, with parties in some cases taking a more active role (for example,
when they were insurance claims adjustors) .
In both settings mediators are not paid and consider their work pro bono contri-
butions to the legal community. Their training, experience and commitment to
particular mediation and negotiation models vary enormously, though Dispute
Resolution Services which administers virtually all court programmes in Los Angeles
courts does attempt evaluation and quality control. In some other settings, such as
in the Family Courts in California, mediators are professionalised, full-time paid
employees of the courts.78
In one court setting, a local municipal court, students mediated general civil disputes
(most commonly landlord-tenant disputes) singly with both represented and unrep-
resented parties. Students were trained in landlord-tenant law and mediated with
a model that included the explanation of rights as well as These cases,
when aggregated, provided a rich matrix of party only, represented vs non-represented
parties and fully represented cases. One repeat player landlord’s lawyer absented
himself from all mediations in which the tenant was unrepresented on the theory
that it was unfair for him to be present.80In one case a student mediator served
both as mediator and language translator, a combination of roles that is often
considered quite problematic in the mediation process. In this case (which I observed),
translation was used masterfully to fully explain to the parties everything that was
happening and had the salutary effect of slowing down the process, which was helpful
to all participants and ideal for research observation. In this setting mediations ranged

78 California has compulsory conciliation requirements in all family custody matters. In this court the
conciliators are usually psychologists or social workers with advanced degrees and specialised court
training. Property settlements in divorce are currently mediated by volunteer attorneys. There is an
interesting question here about what legal matters get allocated to which professionals.
79 In another paper I am exploring the important issue of the role of law in mediation. It should be noted
here that in the relevant jurisdiction there are very strong rent control and other tenant protective
devices and many tenants’ advocates are quite hostile to the mediation process. The mediation model
with which my students are trained is infused with a strong legal rights component and thus distinguishes
between, but tries to deal jointly with, both rights and interests issues. This is itself an issue of some
controversy among professional mediators.
I should also note for the record that we received access to the courts by working with Dispute
Resolution Services, an organisation sponsored by the Los Angeles Bar Association that provides
mediation services, through trained volunteers, throughout Southern California. This was a sensitive
undertaking since I had earlier served as an evaluator of that programme and the services it was providing
to the local indigent community. I gratefully acknowledge the cooperation and professionalism of the
administrative staff and mediator coordinators with whom we worked.
Confidentiality agreements were signed in all cases and thus no identifying names or characteristics
of disputes will be revealed here.
I am mindful (and am not here dealing with the important) human subjects protection issues in using
clinical settings for social scientific research on dispute resolution or other lawyering processes.
80 This of course raises interesting questions about his representation of his clients - we often mediated
good settlements for tenants which he easily acceded to. No doubt this lawyer’s behaviour was as
much affected by the economics of his fee structure (fixed fees for evictions) as by his belief in ‘fairness’
to the parties.

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May 19931 Lawyer Negotiations: Zheories and Realities

from 30 minutes to several hours and could have been continued to a second
session.
In the second court setting, at a larger urban court, students working in teams
mediated general civil cases of all types (with a preponderance of personal injury
and medical malpractice claims) in which all attorneys and parties with authority
to settle were required to attend.82Mandatory mediation has its problems from a
policy perspective but, for a researcher, it assures that all negotiation behaviours
are equally likely to be represented, as contrasted to the self-selecting process of
parties who choose mediation and may be more likely to exhibit problem-solving
or cooperative negotiation behaviours.

Findings
The descriptive data reported here are derived from written transcripts (no taping
of confidential mediation is permitted without party permission) taken during each
mediation by the instructor-supervisor for purposes of instructing and giving feedback
to the student mediators. Students were also asked to complete short evaluative papers
of their mediative interventions and negotiation choices made by the parties or
attorneys.
Rough calculations of the gross data indicate that we settled less than two-thirds
of our cases.83There were no clear patterns with respect to whether settlement was
easier or more difficult with represented, rather than unrepresented parties.
Settlement was considerably more difficult with institutional parties such as govern-
mental agencies, insurance companies or very large landlords, often because either
the lawyer or the principal was unwilling to look at the specifics of individual cases
but tended to treat each legal case as a single example of a larger
Repeat player lawyer-negotiators were slightly more likely to treat the mediation
as a pro f o m exercise, some coming dangerously close to liability for sanctions
by bringing only one offer and failing to move.s6

81 Mediation was strongly supported and recommended, but not required, by the presiding judge who
has been a supporter of both ADR and clinical education. He is an alumnus of the law school. Mediation
space was at a premium in this setting and we often mediated in the jury deliberation room of a court
in which there was an ongoing trial, which affected the use of caucusing and breaks.
82 This mediation, though labelled voluntary, followed from a compulsory arbitration process (in which
at least one party was seeking the next level) and may have reflected a belief that mediation was a
condition precedent to proceeding to a trial de novo or, at the very least, that pushing to another level
might increase settlement offers by increasing transaction costs. In this setting we mediated in a cubicled
conference room which permitted caucusing but endangered, to some extent, confidentiality as voices
outside and inside of the room could be heard. Clearly the architecture of courthouse mediation has
a detrimental effect on the processes taught in more private clinical settings at law school teaching
facilities.
83 A rate that is lower than the general settlement rate of Dispute Resolution Services in the courts.
In my view this lower rate was the result of a more rights-based mediation model, less ‘coercive’
settlement techniques used by student mediators as contrasted to volunteer (and busy) lawyer mediators,
our lack of need to account for settlement rates (query whether we will continue to have access if
our settlement rates ‘fall too low’) and our ability to more easily continue mediation sessions.
84 The analysis of these transcripts is not totally complete so these reports are preliminary.
85 As an illustration, we mediated a group of auto accident cases, both personal injury and property
damage, against the same insurer who claimed to be dealing harshly with an increase of ‘fraudulent’
claims. Though we did see some evidence of exaggerated or even trumped up cases, this insurer failed
to exhibit any real flexibility with respect to any individual case. If institutionalpolicy or setting precedent
is a value of case processing, see Fiss, supra n 8 , there is little evidence that repeat negotiators in
the mediation setting were giving up on larger institutional concerns.
86 Suggesting in their behaviour the tendency to low intensity negotiation contact and content common
in repeat player or small stakes negotiations found by Kritzer, Genn and Ross.

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Zke Modern Law Review [Vol. 56

On the other hand, lawyers were no more or less likely to engage in distributive
or competitivebehaviours than parties. To be sure, there were clearly some lawyers
who saw the mediation process as another stage in litigation manipulation for delay
or other strategic But some lawyers actually facilitated the settlement
process by trying to develop creative solutions or to get the parties to work together.
In one case involving a now dissolved but lengthy business partnership, both lawyers
and the mediators were aligned in trying to work on relationship as well as monetary
issues, while the parties aligned themselves in their desires to perpetuate their conflicts
and refusal to settle, demonstrating that if parties want something very badly (in
this case vengeance and retribution) they may be powerful enough to defeat their
own lawyers and any dispute resolution process. In other cases, even landlord lawyers
often became aligned with creating a ‘good deal’ for all by attempting to specify
the conditions for continuing tenancies or by at least serving to facilitate the
communication process between their clients and their tenants. For some lawyers,
peace, even if not economically advantageous, may be more important; for other
lawyers, fee structure (or a desire to leave the courthouse) may provide incentives
to assist settlement efforts.
Some lawyers (and parties) demonstrated a clear desire to develop creative
solutions, such as the lawyers who sought to restructure a business relationship of
over thirty years between their warring clients, using the lawsuit about a single failed
payment to encourage a restructuring of the whole relationship. In several other
cases, landlord and tenants creatively restructured back rent and payment schedules
to coincide with repairs to property or to time needed to find a new apartment. In
one case where a tenant felt embarrassed by being sued, the landlord offered to
print an apology to other tenants in the building. These individualised ‘solutions’
demonstrate the best of mediation and productive problem-solving. At the other
extreme were lawyers and claims adjustors who came to court mediation sessions
with fixed negotiation offers that they refused to change, even after listening to new
facts or needs from the other side, either because of larger institutional concerns
(a policy of playing ‘hardball’ on fraud cases, or landlords who insisted on having
complaining tenants who had failed to pay the rent leave the premises) or because
of their own personalities. As indicated above, in some cases creative lawyers were
limited by clients who sought retribution, punishment or vindication. Our experience
was that lawyers were not necessarily a help or a hindrance to the negotiation process
- as a group they demonstrated the full range of human abilities to make problems
better or worse. The presence of lawyers did make management of the dispute process
easier - lawyers were clearer about rules and procedures and were effective at
informing their clients about the processes in which they were involved.
Our most troubling observation was not that lawyers were all likely to engage
in unproductive, competitive or distributional behaviours, but that people (including
parties and lawyers) did seem to exhibit almost predetermined tendencies toward
dichotomised approaches to the dispute problems they faced. Consistent with my
more theoretical work,S8it seemed as if orientation to the particular problem or a
mind-set about how to negotiate generally was the best predictor of negotiation
behaviour, regardless of the role of the parties as principals or representatives, or

87 See Menkel-Meadow, supra n 70, for a discussion of how ADR has become another weapon in the
adversarial arsenal of some lawyers.
88 See Menkel-Meadow, ‘Toward Another View,’ supra n 1.

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May 19931 Lawyer Negotiations: Theories and Realities

plaintiffs or defendant^.^^ This would suggest that personality plays a central role
in negotiation behaviour, an observation long made by psychologists studying
the negotiation process.g0Thus, personality may ultimately be more salient in
understanding negotiation behaviour than role or professional orientation. Further
empirical work by clinicians and other dispute resolution trainers who employ either
the Thomas-Kilman MODE conflict exerci~e,~’ Myer-Briggs Personality Inventory
or other psychological tests,= may shed further light on the role that prior orien-
tation plays, both in the educational and negotiation process. If personality is so
central to negotiation behaviour, what can we hope to accomplish in negotiation
teaching?93
On the other hand, there was a minority of both lawyers and parties who willingly
demonstrated openness to a new process (and one team of lawyers who reported
that we did not mediate like most of the mediators in the courts, meaning that we
facilitated settlements and encouraged brainstorming, rather than suggesting solutions
and exclusively using mandatory settlement caucusesN)and who saw the mediation
process as an opportunity to learn and improve their negotiation skills. This orientation
of openness and willingness to learn from experience provides the justification for
claims made by me and others that mediation can serve an educative and
transformative function.95
Thus, from this limited experience, we sadly conclude that there may be an
empirical reality to the polarised models of negotiation, but that these behaviours
are not limited to lawyers. Parties too may have polarised orientations to the world;
seeing in each dispute or encounter with another human being an opportunity to
‘get mine’ or to ‘see what can be done about this problem and work things out.’
If, as many researchers report, most people are lazy about negotiation, that is they
seek to ‘satisfice’ with low intensity contacts and expect to compromise in the middle,
the two polarised orientations will, in reality, meet in a compromised middle that
may not accurately reflect what the parties really need or what they are really entitled
to, unless they have made explicit choices about the transaction costs of more
involved, higher intensity negotiation processes.

89 This is consistent with the work of Merry and Silbey who found two mediator types dominating their
study of small claims and community mediation - advocate-mediators and peacemaker-therapeutic
mediators, ‘Mediator Settlement Strategies’ (1987) 7 Law & Policy Quarterly 32.
90 Dean Pruitt and Jeffrey Z. Rubin, ‘Social Conflict: Escalation, Stalemate and Settlement’ (New York:
Random House, 1986); Morton Deutsch, ‘The Resolution of Conflict: Constructive and Destructive
Processes’ (New Haven, Conn: Yale University Press, 1973); J.Z. Rubin and B. Brown, ‘The Social
Psychology of Bargaining and Negotiation’ (New !York: Academic Press, 1975).
91 Kenneth W. Thomas and Ralph H. Kilmann, ‘Conflict Mode Instrument’ (1972), described in
K. Thomas, ‘Conflict and Conflict Management’ in M.D. Dunnette (ed), The Handbook of Industrial
and Organizational Psychology (Chicago: Rand McNally, 1975); Roderick Gilkey and Leonard
Greenhalgh, ‘The Role of Personality’ in Breslin and Rubin (eds), Negoriarion: Theory and Pracrice
( 1991).
92 See tests specified in Gilkey and Greenhalgh, op cir.
93 A lot, in my view. Negotiation is still both a science and an art and with a little self-awareness about
one’s personality tendencies lawyers and students can still learn to broaden their repertoires and increase
the scope of their choices.
94 Separate meetings with the parties.
95 See Menkel-Meadow, supra n 70; Bush, ‘Defining Quality in Dispute Resolution: Taxonomies and
Anti-Taxonomies of Quality Arguments’ (1989) 66 Denver L Rev 335; and Bush, ‘Mediation and
Adjudication, Dispute Resolution and Ideology: An Imaginary Conversation’ (1989) 3 J Contemp
Legal Issues 1.

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The Modern Law Review [Vol. 56

Implications for Education and Regulation of Negotiation

and Mediation
When our students mediated disputes it caused them to become more critical of
their own negotiation work. They asked how they could facilitate better solutions,
how they could go beyond satisficing solutions and educate the other side about
the advantages of deeper considerations of the goals, needs, interests and justice
concerns of particular problems. As mediators, they became educators about the
negotiation process and this in turn affected their own view about how they negotiated
themselves. Perhaps it was the old saw about ‘knowing it when they saw it’ - by
watching others behave unproductively or inefficiently and by trying to intervene
and rechannel conflict productively they understood better the dimensions of the
complexity of their own negotiation behaviour. Faced with an empirical reality of
how lawyers actually behave, students saw the costs of conformity as they struggled
to facilitate better solutions in a mediation setting.96Confronted with the reality of
how lawyers and parties actually behave, students became motivated to learn how
not to reflect the destructive or inefficient patterns they observed.
For me this is the promise of education about negotiation and dispute resolution.
In the face of strong empirical evidence that most negotiation is low intensity and
potentially quite inefficient, not to mention unpleasant, I persist in a prescriptive
vision that lawyering can be made better and used for better purposes. What we
learned from this experience is that aggregations of clinical lawyering experiences,
even when the data are ‘bad’ (that is disconfirming of what we hope to find), are
extremely useful for the learning - both as a check on reality and as a motivator
for the future. The clinic as social science laboratory gives us the potential for
understanding how lawyering currently is conducted, allows us to test our theories
and engages us in the continuing process of trying to improve the lawyers that we
produce. Thus, if the ‘theory-practicespiral’97is really to inform our work, it must
include empirical assessments of what we see and observe in lawyering behaviour
and, ultimately, must be turned on us as well to evaluate what differences our
educational processes make.
This work has further implications for regulation of the dispute resolution process.
If we are to understand and evaluate the behaviours engaged in by lawyers who
control the outcomes clients receive in the civil justice system, we must confront
the important policy issues of when to privatise and when to make public the varieties
of alternative dispute resolution processes now in use. An obvious and clear line
is that when the public facilities of courts are used, the processes must be made
available for scrutiny and evaluation (while protecting client confidentiality at the
same time), especially when third parties (such as mediators or settling judges) are
provided by the public fisc. More difficult is the issue of how to regulate private

96 I realise the text is full of my conclusions and unsubstantiated assertions. Clearly not all students saw
things this way. In several cases, as instructors we had to deal with student over-identification with
particular parties. In some cases this reflected the volatility of local politics about rent control and
students’ growing conservatism and identification with landlords rather than tenants (an example of
projected class consciousness), but that too is a subject for another day.
97 See Goldfarb, ‘A Theory-Practice Spiral: The Ethics of Feminism and Clinical Education’ (1990)
75 Minn L Rev 1599; Spiegel, ‘Theory and Practice in Legal Education: An Essay on Clinical Legal
Education’ (1987) 34 UCLA L Rev 577; Lesnick, ‘Infinity in a Grain of Sand: The World of Law
and Lawyering as Portrayed in the Clinical Teaching Implicit in the Law School Curriculum’ (1990)
37 UCLA L Rev 1157.

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May 19931 Lawyer Negotiations: Theories and Realities

negotiations. Many have suggested that lawyer ethical and professional responsibility
rules should be modified to require greater honesty, candour and good faith
bargaining, but thus far, such efforts have failed in the United States due to the
lack of agreement on how to specify standards for negotiation b e h a v i o ~ rOthers
.~~
suggest that increased continuing education requirements will teach lawyers more
effective ways of negotiating and will move them away from the conventional, low
intensity, compromising activity that may not be most effective for particular clients.
Still others debate whether court-assisted ADR programmes should be mandatory
or voluntary. In my view, even some form of mandatory programme may have
salutary effects, if not used to ‘coerce’ a settlement. As the preliminary aspects
of this study indicate, requiring lawyers to participate in a mediation programme
makes visible to third parties (and to their clients) their negotiating behaviour and
this visibility may in turn begin the kind of self-reflection and self-criticism that
may motivate lawyers to examine their much entrenched behaviour.
Empirical studies reveal that negotiation behaviour remains relatively simplistic
and does not yet track the more subtle and nuanced theories of negotiation developed
in a wide range of academic disciplines. Perhaps through greater visibility of dispute
resolution processes we may be able to educate and then regulate lawyers to produce
wise, efficient and amicable solutions to legal problems.

98 See sources cited in n 35.

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