Legal Negotiation: A Study of Strategies in Search of a Theory

Carrie Menkel-Meadow

doi:10.1111/j.1747-4469.1983.tb00221.x

1 The following books are under review here: Gary Bellow & Bea Moulton, The Lawyering Process: Negotiation (Mineola, N.Y.: Foundation Press, 1981); Herb Cohen, You Can Negotiate Anything: How to Get What You Want (Secaucus, N.J.: Lyle Stuart, 1980); Harry T. Edwards & James J. White, The Lawyer as a Negotiator: Problems, Readings and Materials (St. Paul, Minn.: West Publishing Co., 1977); Roger Fisher & William C. Ury, Getting to Yes: Negotiating Agreement Without Giving In (Boston: Houghton Mifflin, 1981); P. H. Gulliver, Disputes and Negotiations: A Cross-cultural Perspective (New York: Academic Press, 1979); Dean G. Pruitt, Negotiation Behavior (New York: Academic Press, 1981); Howard Raiffa, The Art and Science of Negotiation (Cambridge: Harvard University Press, Belknap Press, 1982); Gerald R. Williams, Legal Negotiation and Settlement (St. Paul, Minn.: West Publishing Co., 1983); I. William Zartman & Maureen R. Berman, The Practical Negotiator (New Haven, Conn.: Yale University Press, 1982).Google Scholar

2 Anselm L. Strauss, Negotiations: Varieties, Contexts, Processes and Social Order (San Francisco: Jossey Bass, 1978).Google Scholar

3 Zartman & Berman Thomas C. Schelling, The Strategy of Conflict (Cambridge: Harvard University Press, 1960); Roger Fisher, International Conflict for Beginners (New York: Harper & Row, 1969).Google Scholar

4 Michael Bacharach, Economics and the Theory of Games (London: Macmillan, 1976); John C. Harsanyi, Rational Behavior and Bargaining Equilibrium in Games and Social Situations (New York: Cambridge University Press, 1977); John G. Cross, The Economics of Bargaining (New York: Basic Books, 1968); Oran R. Young, Bargaining: Formal Theories of Negotiation (Urbana: University of Illinois Press, 1975).Google Scholar

5 It is estimated that over 90% of all cases filed for litigation are settled before trial. Williams at 1; H. Laurence Ross, Settled Out of Court 3 (2d ed. New York: Aldine Publishing Co., 1980); Alvin B. Rubin, A Causerie on Lawyers' Ethics in Negotiation, 35 La. L. Rev. 577 (1975). In addition to litigation, most lawyers spend much of their time negotiating nonlitigation matters, planning transactions, drafting contracts, and negotiating with a variety of agencies and private and public bodies.Google Scholar

6 Bellow & Moulton Edwards & White; Michael Meltsner & Philip G. Schrag, Public Interest Advocacy: Materials for Clinical Legal Education ch. 13, Negotiation (Boston: Little, Brown & Co., 1977); Cornelius Peck, Cases and Materials on Negotiation (2d ed. Washington, D.C.: BNA, 1980); Gary T. Lowenthal, A General Theory of Negotiation Process, Strategy and Behavior, 31 U. Kan. L. Rev. 69 (1982); Williams; Fisher & Ury; Harrop A. Freeman & Henry Weihofen, Clinical Law Training: Interviewing and Counseling (St. Paul, Minn.: West Publishing Co., 1972); Carrie Menkel-Meadow, Toward Another View of Negotiation: The Structure of Legal Problem Solving, 31 U.C.L.A. L. Rev. (1984); Robert E. Mathews, Negotiation: A Pedagogical Challenge, 6 J. Legal Educ. 93 (1953).Google Scholar

7 Pruitt; Daniel Druckman, Negotiations: Social-Psychological Perspectives (Beverly Hills, Cal.: Sage Publications, 1977); Jeffrey Z. Rubin & Bert R. Brown, The Social Psychology of Bargaining and Negotiation (New York: Academic Press, 1975); Bacharach, supra note 4; Raiffa; Anatol Rapoport, Two-Person Game Theory: The Essential Ideas (Ann Arbor: University of Michigan Press, 1966); Zartman & Berman; Pamela J. Utz, Settling the Facts: Discretion and Negotiation in Criminal Court (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1978).Google Scholar

8 . See Carrie Menkel-Meadow, , The Legacy of Clinical Legal Education: Theories About Lawyering, 29 Clev. St. L. Rev. 555 (1980); George, S. Grossman, Clinical Legal Education: History and Diagnosis, 26 J. Legal Educ. 162 (1974).Google Scholar

9 See William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29; Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978); 1 Richard Abel, ed., The Politics of Informal Justice: The American Experience (New York: Academic Press, 1982). See also Derek Bok, Annual Report to Harvard Board of Overseers (1983).Google Scholar

10 There has been growing interest in “alternative” forms of dispute resolution such as mediation and neighborhood justice movements. See, e.g., Leonard L. Riskin, Mediation and Lawyers, 43 Ohio St. L.J. 29 (1982); Richard Hofrichter, Neighborhood Justice and the Social Control Problems of American Capitalism: A Perspective, in Abel, supra note 9.Google Scholar

11 Cohen Chester L. Karrass, The Negotiating Game (New York: Thomas Y. Crowell, 1970); G. Nierenberg, The Art of Negotiating: Psychological Strategies for Gaining Advantageous Bargains (New York: Hawthorn Books, 1968). The popular literature has been extended to include children: Joy Wilt, Handling Your Disagreements: A Children's Book About Differences of Opinion (Waco, Tex.: Educational Products, 1980).Google Scholar

12 Other materials, not under review here, are also used for teaching. See materials supra in note 6; James J. White, The Lawyer as Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967). See also David A. Binder & Carrie Menkel-Meadow, Materials for Lawyering Skills (Chicago: American Bar Association, 1982).Google Scholar

13 The “popular” literature is voluminous, see supra note 11. I have selected Cohen as a recent and typical example of this literature. Cohen, Like many of the popularizers, is an attorney who claims experience in a wide variety of negotiation contexts.Google Scholar

14 Fisher & Ury (at 122–33) and Raiffa (at 66–77) also use examples of legal negotiations.Google Scholar

15 See infra discussion accompanying notes 57–60.Google Scholar

16 Elsewhere I have labeled this form of negotiation problem-solving negotiation. See Menkel-Meadow, supra note 6.Google Scholar

17 See infra discussion accompanying note 71–89.CrossRef Google Scholar

18 These alternative approaches may not be as polarized as they seem, particularly in the behaviors they produce. It might be wiser to think of negotiation behaviors and conceptions as existing on a continuum rather than as completely dichotomized.Google Scholar

19 See, e.g., Materials cited supra in notes 7, 11, and 12 and such other specialized books about negotiation as Richard E. Walton & Robert B. McKersie, A Behavioral Theory of Labor Negotiation: An Analysis of a Social Interaction System (New York: McGraw-Hill Book Co., 1965); Fred Charles Ikle, How Nations Negotiate (New York: Harper & Row, 1964); Ross, Supra note 5.Google Scholar

20 . Melvin Aron Eisenberg, , Private Ordering Through Negotiation: Dispute Settlement and Rulemaking, 89 Ham. L. Rev. 637 (1976).Google Scholar

21 From Mathews, supra note 6, at 94.Google Scholar

22 From Gerald R. Williams et al., Effectiveness in Legal Negotiation in Law and Psychology: Research Frontiers (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1976).Google Scholar

23 The exceptions include such hybrid types as labor negotiation. Williams (at 2–5) divides legal negotiations into four types: civil litigation (the focus of his book), transactional, criminal litigation, and labor.Google Scholar

24 . See, e.g., Eisenberg, , supra note 20; Macauley, Stewart, Elegant Models, Empirical Pictures, and the Complexities of Contract, 11 Law & Soc'y Rev. 507 (1977); Binder & Menkel-Meadow, supra note 12.Google Scholar

25 Williams's study of legal negotiators was designed to test what “effective” negotiators were like. I have some difficulty, however, with his failure to define this term. See Williams at 15–46.Google Scholar

26 . Of course, no anthropologist would study only written sources. Particularly when dealing with a topic such as lawyer behavior, such nonempirical sources may distort the evidence. See William, H. Simon, Homo Psychologicus: Notes on a New Legal Formalism, 32 Stan. L. Rev. 487 (1980).Google Scholar

27 Remember that conventional legal negotiation strategy is aimed at winning.Google Scholar

28 But see supra note 25.Google Scholar

29 Peck, supra note 6.Google Scholar

30 The Edwards & White book presents, among other works, the now classic Meltsner & Schrag “Negotiating Tactics for Legal Services Lawyers,” designed to give public interest lawyers useful tactics for dealing with more powerful adversaries (at 133–41). Among other bits of advice, legal negotiators are told to “outnumber the other side,”“arrange to negotiate on your own turf,”“lock yourself in,”“make your first offer very high,”“make the other side make the first concession,”“be tough, especially against a patsy,”‘“after agreement has been reached, have your client reject it and raise his demands,“’ and” appear irrational when it seems helpful.” See also Meltsner & Schrag, supra note 6, ch. 13 Bellow & Moulton provide more varied and complicated ways of analyzing the strategic context—by examining bargaining limits, settlement costs, use of economic formulas, and use of threats, promises, and leverage (at 119–46), but they too offer primarily a list of techniques or behaviors for increasing one's bargaining power over the other party. The negotiator is told how to avoid answering questions about oneself by forcing the other side to answer (at 87–93), how to control agendas and make demands and counter-demands (at 94–108), and how to analyze the dynamics of concession making so that something may be exchanged to facilitate agreement. Bellow & Moulton include (at 146–58) an excerpt from Gerald Nierenberg's work on problem-solving strategies where the parties' goals may be to search for ways of achieving joint gain (at 150–54). See Gerald Nierenberg, Fundamentals of Negotiating (New York: Hawthorn Books, 1973).Google Scholar

31 James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 A.B.F. Res. J. 926.CrossRef Google Scholar

32 For the one exception, see Louis Brown & Edward Dauer, Planning by Lawyers: Materials on a Non-adversarial Legal Process (Mineola, N.Y.: Foundation Press, 1978).Google Scholar

33 A zero-sum (or constant-sum) game is one in which the total winnings for one party minus the total losses for the other party equal a constant (usually zero) sum. In short, one party's loss is the other party's gain. Menkel-Meadow, supra note 6.Google Scholar

34 Williams at 17 and app. I, Research Methodology, at 137–47.Google Scholar

35 But see supra note 25.Google Scholar

36 Another empirical report by Steven Pepe on how lawyers negotiate is due soon.Google Scholar

37 See also Gulliver at 81–179.Google Scholar

38 Lowenthal, supra note 6, elaborates more fully on Williams's discussion of negotiation contexts and tries to bridge the gap between legal and nonlegal scholarship.Google Scholar

39 See other popular books in supra note 11. I have traced the source of most of these strategic exhortations to an important work on a limited form of negotiation, Walton & McKersie, supra note 19.Google Scholar

40 Cohen Says that one must play competitively in such games, a point with which I disagree. See Menkel-Meadow, supra note 6.Google Scholar

41 Id.Google Scholar

42 In these chapters Cohen Does not differ much from Fisher & Ury The difficulty is that the thrust of most of Cohen's book undermines what is said in chs. 9 and 10.Google Scholar

43 This is known in the literature as the “focal point”; see Schelling, supra note 3, and Raiffa. Elsewhere I have argued that “split the difference” compromises may be dysfunctional in legal negotiations because the parties may be forced to “give up” something in compromise that need not have been conceded if they had explored complementary rather than conflicting interests. Menkel-Meadow, supra note 6.Google Scholar

44 Other commentators disagree and point out that representatives may be too distant from the processes or results desired and may also tolerate behaviors and results that the parties would not tolerate. As agents or representatives they will do for others what they would not do for themselves. See Pruitt; Schwartz, supra note 7.Google Scholar

45 Supra note 7.Google Scholar

46 This is the finding from which much of the strategic advice to raise one's “aspiration level” is derived. Pruitt at 15–26. See also Cohen at 122–26; Raiffa at 41.Google Scholar

47 See also supra note 43.Google Scholar

48 The choices are the “mutually prominent” or “integrative” solutions. Pruitt at 71–135.Google Scholar

49 See also Dean Pruitt & Steven Lewis, The Psychology of Integrative Bargaining, in Druckman, supra note 7.Google Scholar

50 See discussion infra in text.Google Scholar

51 See Richard L. Abel, Law Books and Books About Law, 26 Stan. L. Rev. 175 (1973), for an excellent discussion of how writing on law requires greater empirical support and less normative argument.Google Scholar

52 These types are derived from British diplomat Sir Harold Nicholson's memoirs. Harold Nicolson, Diplomacy (New York: Oxford University Press, 1964).Google Scholar

53 Fisher & Ury; Raiffa; Menkel-Meadow, supra note 6.Google Scholar

54 Menkel-Meadow, supra note 6, Text accompanying notes 118–29.Google Scholar

55 Indeed, they remind us (at 90) that these two forms of reasoning should be familiar to those of us schooled in legal reasoning. See Edward Levi, An Introduction to Legal Reasoning (Chicago: University of Chicago Press, 1949).Google Scholar

56 Lowenthal, supra note 6, at 98–100.Google Scholar

57 Gulliver's work is as foundational to a general theory of negotiation as Eisenberg's is to a general theory of legal negotiation. Their methods are similar. They both construct a structural-functional approach to the study of negotiation—what are the purposes of negotiation and what are the continuous structures that occur in these negotiations.Google Scholar

58 Menkel-Meadow, supra note 6. By “court oriented” I mean the assumption of binary (win/lose) and limited (damages or injunction) results.Google Scholar

59 Supra note 33.Google Scholar

60 Supra note 20.Google Scholar

61 This is consistent with my own approach—a fact which any reviewer must disclose. See Menkel-Meadow, supra note 6.Google Scholar

62 I know of at least 10 courses in which Fisher & Ury's work is being used as a text or supplementary reading. See infra discussion accompanying notes 125–50.Google Scholar

63 See supra text following note 43.Google Scholar

64 E.g., Fisher & Ury's BATNA (Best Alternative to a Negotiated Agreement), at 104, is an excellent device for determining whether a negotiator should abandon a negotiation for a better nonnegotiated solution (in litigation the most obvious BATNA is trial), but it may cause a principled negotiator to see proposals as a take-it-or-leave-it alternative. It also may become the old “bottom line” or “position” of adversarial bargaining, id. at 102–3.Google Scholar

65 In my own work on problem-solving negotiation I have argued that these new approaches can be used even if only one party tries to find solutions that take into account all the parties' total needs. Menkel-Meadow, supra note 6.Google Scholar

66 I fear that even I have oversimplified the dichotomy between transactional and dispute resolution negotiations. The current vogue is to see transactional negotiations as more consensual and coordinative than the presumed adversarial quality of dispute negotiations, but I suspect that there is overlap in these characterizations. Many transactional negotiations have adversarial aspects (“contract breakers,” risk allocation clauses (e.g., for labor or entertainment contracts).Google Scholar

67 For those who seek to understand game theory, see R. Duncan Luce & Howard Raiffa, Games and Decisions: Introduction and Critical Survey (New York: John Wiley & Sons, 1957). See also John Von Neumann & Oskar Morgenstern, Theory of Games and Economic Behavior (Princeton, N.J.: Princeton University Press, 1944).Google Scholar

68 A solution is Pareto optimal if no party can be made better off without harming the other party.Google Scholar

69 For other efforts to deal with these difficult problems see Bellow & Moulton at 253–73; Williams at 62–66; Pruitt at 61–65; Zartman & Berman at 102–9; Menkel-Meadow, supra note 6, text accompanying notes 229–48.Google Scholar

70 The time may almost be ripe for an encyclopedia or yearbook on negotiation research such as is commonly prepared in other disciplines. See, e.g., Encyclopedia of the Social Sciences, Handbook of Political Communications, International Labour Law Reports.Google Scholar

71 Supra note 5.Google Scholar

72 The types have been found not only in Williams's research on legal negotiators but in the social psychological literature as well. See the studies collected in Rubin & Brown, supra note 7.Google Scholar

73 This is in contrast to the political science literature, some of which is expressly concerned with negotiation goals and outcomes. Thus, Zartman & Berman Ask how peace and agreement can best be achieved or effectuated.Google Scholar

74 There are two aspects of “maximizing victory.” The first is simply to “win”; the second is to maximize the amount of material “won”.Google Scholar

75 See infra discussion accompanying notes 114–24.Google Scholar

76 Fisher & Ury Define “merits” as the needs or interests of the parties. This may be confusing in legal negotiations where there are also legal merits. See Menkel-Meadow, supra note 6, text accompanying notes 279–83.Google Scholar

77 Id.Google Scholar

78 . Id. text accompanying notes 157–58. See also Richard, L. Abel, A Critique of American Tort Law, 8 British J. Law & Soc'y 199 (1981).Google Scholar

79 . See Goods, Not Cash, Settle Loss Claims, L.A. Times, Feb. 19, 1983, For examples of how substitute goods may be more effective at satisfying both parties' needs.Google Scholar

80 Supra note 20.Google Scholar

81 See John E. Coons, Approaches to Court Imposed Compromise—The Uses of Doubt and Reason, 58 Nw. U.L. Rev. 750 (1964), and id., Compromise as Precise Justice, in J. Roland Pennock & John W. Chapman, eds., Compromise in Ethics, Law, and Politics: Nomos XXI, Yearbook of the American Society for Political and Legal Philosophy (New York: New York University Press, 1979).Google Scholar

82 Eisenberg, supra note 20.Google Scholar

83 . Michael, H. Davis, The Courtroom Mystique and Legal Education, 23 Ariz. L. Rev. 661 (1981).Google Scholar

84 See Binder & Menkel-Meadow, supra note 12, for an effort to distinguish between transactional and dispute negotiations.Google Scholar

85 I think that we often pursue negotiation because we hope to achieve better substantive results than if we did not negotiate.Google Scholar

86 For a discussion of how our orientations or conceptions of negotiation shape the behaviors we choose and, thus, the results we achieve, see Menkel-Meadow, supra note 6, text accompanying note 11.Google Scholar

87 See supra note 68.Google Scholar

88 Id. There I distinguish between “efficient” and “just” solutions.Google Scholar

89 Id. Fairness and justness refer both to the results or outcomes of the negotiation and to the process by which the results are achieved.Google Scholar

90 Utz, supra note 7, at x.Google Scholar

91 Bellow & Moulton, Edwards & White, Williams, and Meltsner & Schrag All discuss the negotiation process almost exclusively from a litigation perspective.Google Scholar

92 I think adversarial conceptions are limited even within the dispute resolution context; see Menkel-Meadow, supra note 6. Others may think that adversarial conceptions are just as useful in the transactional context, as where contract drafters include “deal breakers” to get out of unfavorable transactions.Google Scholar

93 Cf. William Klein, The Strategy of Put Up or Shut Up in Deal Negotiations, U. Cal. Davis L. Rev. (forthcoming).Google Scholar

94 Probably because this literature has been written by legal clinicians working primarily in the litigation context. But see Binder & Menkel-Meadow, supra note 12, and the attention paid to labor negotiation in this literature, see, e.g., Edwards & White, supra note 6, at 259–318.Google Scholar

95 Schwartz, supra note 9, and Murray L. Schwartz, Lawyers and the Legal Profession (Indianapolis: Bobbs-Merrill, 1979).Google Scholar

96 . See William Laurens Walker, & John, W. Thibaut, An Experimental Examination of Pre-Trial Conference Techniques, 55 Minn. L. Rev. 1113 (1971).Google Scholar

97 In labor negotiations, e.g., a duty to bargain is compelled by law, § 8(a)(5), (b)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), (b)(3).Google Scholar

98 Utz, supra note 7, studied plea bargaining in San Diego and Oakland, California. She found that different patterns of criminal activity, the organization of prosecutor's and defense counsel's offices, and judges' activism affected the type of negotiation conducted.Google Scholar

99 Lowenthal, supra note 6, at 43.Google Scholar

100 Id. at 94–96; see also Menkel-Meadow, supra note 6, at note 288.Google Scholar

101 Id. at 96–98.Google Scholar

102 Pruitt at 39–41; Lowenthal, supra note 6, at 105–9.Google Scholar

103 Although such behavior has been technically prohibited, American Bar Association Code of Professional Responsibility DR 5–105, it is a commonly recognized practice, particularly in criminal plea negotiations among lawyers who deal with each other regularly; see Utz, supra note 7.Google Scholar

104 Lowenthal, supra note 6, at 110; see also Morton Deutsch, The Resolution of Conflict: Constructive and Destructive Processes (New Haven Conn.: Yale University Press: 1973); Rubin & Brown, supra note 7.Google Scholar

105 . Menkel-Meadow, , Supra note 6, at n.238.Google Scholar

106 . Id. at n. 53.Google Scholar

107 For my own analysis of this issue see id text accompanying note 288.Google Scholar

108 Contrast Bellow & Moulton at 58–59 With Raiffa at 138–39.Google Scholar

109 Pepe, supra note 36.Google Scholar

110 For a useful discussion of the delicate relationship between hypotheses and field research, see Leonard Schatzman & Anselm L. Strauss, Field Research: Strategies for a Natural Sociology (Englewood Cliffs, N.J.: Prentice-Hall: 1973), and Howard Schwartz & Jerry Jacobs, Qualitative Sociology: A Method to the Madness (New York: Free Press, 1979).Google Scholar

111 This is not a fair criticism of Bellow & Moulton and Edwards & White, Who expressly indicate that they are providing a sampling of negotiation literature which attempts to do all of these things.Google Scholar

112 See infra discussion accompanying notes 125–50.Google Scholar

113 For one effort to apply some negotiation theory to the complexities of different types of practice, see Binder & Menkel-Meadow, supra note 12.Google Scholar

114 See e.g., Bellow & Moulton at 253–73; Williams at 59–66; Lowenthal, supra note 6, at 108–9.Google Scholar

115 Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974).Google Scholar

116 For some good efforts at tackling this problem see Lowenthal, supra note 6, at 108–9; Bellow & Moulton at 16–18, 253–73; David A. Binder & Susan C. Price, Legal Interviewing and Counseling: A Client-Centered Approach, chs. 7, 8, 9 (St. Paul, Minn.: West Publishing Co., 1977); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41 (1979). See Binder & Menkel-Meadow, supra note 12, for models of discussions between clients and lawyers in the counseling-for-negotiation setting.Google Scholar

117 A popular version of the latter can be found in the movie The Verdict.Google Scholar

118 See Menkel-Meadow, supra note 6, Text accompanying notes 229–48; Pruitt at 61–65; Zartman & Berman at 102–9; Williams at 62–66.Google Scholar

119 Williams at 59–66; Edwards & White 372–424; Bellow & Moulton at 253–73.Google Scholar

120 Bellow & Moulton at 265–73. See also Schwartz, supra note 9, for an effort to define a new standard of conduct in nonlitigation matters. An interesting question raised by the proposals presented by Schwartz is whether litigation negotiations, which are not supervised by a third party (judge), should conform to the adversary-litigation standards or to the nonlitigation “unconscionability” standards.Google Scholar

121 Current rules require that clients be informed of all settlement offers. See EC 7–7.Google Scholar

122 Robert Ringer, Winning Through Intimidation (New York: Fawcett, 1974).Google Scholar

123 See, e.g., The Verdict, “Perry Mason,” The Paper Chase.Google Scholar

124 The client may know more about the other side than the lawyer. On the other hand, in some instances the obstacles to problem-solving negotiation come not from the other lawyer but from one's own client.Google Scholar

125 Peck, supra note 6; Edwards & White.Google Scholar

126 See Edwards & White, Teachers Manual for “The Lawyer as a Negotiator” (St. Paul, Minn.: West Publishing Co., 1977).Google Scholar

127 Id. at 2. Edwards & White are not alone. Peck's problems are similar, and so are those provided by the other clinical texts. See Gerald R. Williams, Legal Negotiation and Settlement, Teacher's Manual with Course Materials and Problems for Negotiation (St. Paul, Minn.: West Publishing Co., 1983); 1 & 2 Gary Bellow & Bea Moulton, The Lawyering Process—Problems (Mineola, N.Y.: Foundation Press, 1978).Google Scholar

128 Raiffa at 26–32; Williams at 18–33; James J. White, The Lawyer as Negotiator: An Adventure in Understanding and Teaching the Art of Negotiation, 19 J. Legal Educ. 337 (1967); Bernard M. Ortwein, Teaching Negotiation: A Valuable Experience, 31 J. Legal Educ. 108 (1981). Raiffa's grading is actually more complex, as the “score” on particular problems represents the parties' ability to maximize joint gain or achieve Pareto-optimal solutions.Google Scholar

129 This may be something of an overstatement. Even in those courses where most of the negotiations occur “off camera,” some portion may be conducted “live” in front of the class for some critique of the process.Google Scholar

130 See materials cited supra notes 126 and 127.Google Scholar

131 See supra note 63.Google Scholar

132 Menkel-Meadow, supra note 6, text accompanying notes 53–84. Bellow & Moulton do provide some material on “problem-solving” strategies, at 146–54, but the majority of the materials are based on the more conventional zero-sum, adversarial approach to negotiation.Google Scholar

133 As discussed above, most of the clinical teaching materials and models, particularly Meltsner & Schrag, Are derived from the bitterly contested cases of public interest litigation.Google Scholar

134 There certainly are some clients who will make such demands and students should be exposed to such clients, but all too often these are the only clients students are exposed to in simulations.Google Scholar

135 Michael Meltsner & Philip G. Schrag, Toward Simulation in Legal Education 59–124 (Mineola, N.Y.: Foundation Press 1975).Google Scholar

136 Law School Uses Community to Educate: A Law School Program with a New Format, L.A. Times, Dec. 16, 1982.Google Scholar

137 Edwards & White's instructions in this problem demonstrates to students what happens when the parties undervalue their positions. They are often angry to learn they “could have done better”.Google Scholar

138 Supra note 135. The case provided involves an employment discrimination lawsuit.Google Scholar

139 Bellow & Moulton draw on a case developed for Legal Services Corporation training of new lawyers, Valley Marine Bank v. Terry James. See Menkel-Meadow, supra note 6, at text accompanying notes 75–84, for a discussion of how this “conventional” adversarial case can be transformed into an opportunity for problem-solving negotiation.Google Scholar

140 We should also learn from Fisher & Ury To test whether Gulliver's, Williams's, and Pruitt's stages of negotiation will still be appropriate if problem-solving approaches and methods are used.Google Scholar

141 See Menkel-Meadow, supra note 6, text accompanying notes 263–64.Google Scholar

142 For my own efforts to develop teaching problems and models before theory is complete, see Binder & Menkel-Meadow, supra note 12.Google Scholar

143 See Neil Postman & Charles Weingartner, Teaching as a Subversive Activity (New York: Delacorte Press, 1969).Google Scholar

144 Lawyers exposed to conventional continuing education programs will, see, e.g., Charles Craver, Basics of Effective Legal Negotiating (Berkeley: California Continuing Education of the Bar, 1982).Google Scholar

145 Others who preceded them include Brown & Dauer, supra note 32, and others who added “the materials” to the “cases” during the Legal Realist movement.Google Scholar

146 Clinical education is pedagogically innovative because of the change in the text for learning. For an example of how “performance texts” are used to teach lawyering, see Robert J. Condlin, Socrates' New Clothes: Substituting Persuasion for Learning in Clinical Practice Instruction, 40 Md. L. Rev. 223 (1981). The use of the dialogue or transcript of a lawyering performance for critique is not that different from the analysis of the text of an appellate case (or literary text for that matter), but the actors in and of the text are different.Google Scholar

147 Eisenberg, supra note 20; Lowenthal, supra note 6; Schwartz, supra note 9; Rubin, supra note 5; Menkel-Meadow, supra note 6; P. H. Gulliver, Negotiation as a Mode of Dispute Settlement: Towards a General Model, 7 Law & Soc'y Rev. 667 (1973).Google Scholar

148 Fisher & Ury's suggestions for “how to” are similar to my own suggestions on a number of issues, though there is still not, in my opinion, a definitive “how to” book for legal negotiations.Google Scholar

149 See Schwartz, supra note 9; Rubin, supra note 5; Bellow & Moulton at 253–73; White, supra note 31. Though I have not discussed these issues here, they are of utmost importance in any discussion of negotiation with students.Google Scholar

150 Although the AALS Directory of Law Teachers does not list teachers of negotiation (it does list teachers of arbitration), the AALS-sponsored conference on Negotiation and Dispute Resolution, Cambridge, Mass., November 1982, attracted more participants than any other AALS teaching conference.Google Scholar

151 Of course, an anthropologist of 2184 would also know about what advances we made after 1984.Google Scholar

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