law and negotiation: necessary partners or strange … · 7 todd b. carver & alberta a. vondra,...

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LAW AND NEGOTIATION: NECESSARYPARTNERS OR STRANGE BEDFELLOWS?

Nancy L. Schultz*

I. INTRODUCTION

Almost thirty years ago, Robert Condlin wrote an article dis-cussing the frustrations of students in his Negotiations class.1 Henoted that his law students saw legal argument in negotiation pri-marily as a source of vexation rather than resolution. In thetwenty-plus years I have taught negotiations, I have heard the samething many times. Students will prepare and research and then bedisconcerted when their negotiating partners are not swayed bytheir brilliant legal arguments. One comment by a student in a pa-per discussing his team’s preparation for negotiation shows the ini-tial thought process in a domestic relations negotiation: “It wasimportant for us to focus primarily on real life situations, researchsome of the law, and use it against Trudy.” When this preparationproduces results, students are happy; when students feel they arebeing “stonewalled” despite their superior legal position, they areless so.

In my Negotiations class, students receive points for achievingtheir clients’ interests. These points are then tallied for a score thatwill contribute to their rank against the other student teams negoti-ating on the same side of a case.2 Their frustration most frequentlyexpressed concerns other students’ caring about only points andunwillingness to discuss the facts and the law. This can never be

* Professor of Law, Chapman University, Fowler School of Law. Many thanks to NathanBrown, Tom Nolin, and Austin Underhill for research assistance and assistance getting the sur-vey results into usable form. Many thanks also to the lawyers who responded to my survey. Lastbut most definitely not least—more thanks than I can ever convey to Professor Charles Craver(George Washington University Law School)—for being my friend and colleague, for startingme on this fascinating path of teaching and learning about dispute resolution, and most recentlyfor encouraging me in writing this article, reading a draft, and answering my questions along theway.

1 Robert J. Condlin, “Cases on Both Sides”: Patterns of Argument in Legal Dispute-Negotia-tion, 44 MD. L. REV. 65 (1985).

2 This is an approach I learned from Charlie Craver, and I completely agree with his beliefthat students will take class negotiations more seriously when there is something at stake thatthey care about, and what do students care about more than grades? In my class, the negotiationscores typically contribute to no more than 15% of the grade—I leave the actual percentage to astudent vote each semester.

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106 CARDOZO J. OF CONFLICT RESOLUTION [Vol. 15:105

entirely true, because without the facts and the law, there is nobasis for trading points.3 I always assure my students that even inthe “real world” of legal practice, negotiated outcomes are not nec-essarily dictated by the law and the facts. Other factors often con-tribute to a dispute’s resolution outside of court. There are almostalways students who assure me that I am wrong—that in the “realworld,” lawyers will always make decisions based solely on law andfacts.

I am not surprised that law students believe this notion; thebulk of their legal education is spent discussing appellate decisionsand picking them apart to determine what facts are key and howlegal rules are derived. There is relatively little discussion of con-textual factors—clients, money, time, emotions, juries, etc.4 Then Icome along and tell them there are virtually no rules governingnegotiations and that they are not bound by the law, except to theextent that they may not reach an agreement that actually violatesthe law. This paradigm may give them a little too much freedomand is one in which they are not used to working.

Thinking that it might be useful to have some real-world sup-port for what I tell my students, I decided to ask some “real” law-yers what dictates the outcome of their negotiations. I created arelatively simple survey on SurveyMonkey and sent the link to avariety of lawyers.5 The results form the basis of this article andconfirm my hypothesis that legal authority is not necessarily thedetermining factor for negotiated outcomes, though it certainlyplays an important role, especially in the preparation phase ofnegotiations.

II. THE QUESTION

An issue that has been the subject of discussion and debate inalternative dispute resolution (“ADR”) scholarship is the degree

3 Charlie Craver responds to these complaints by telling his students to just write numberson a piece of paper and trade them. The students quickly realize that they have nothing to talkabout if all they can talk about are numbers.

4 I like to think that the changing demands on legal education are making this statementless true than it used to be. Twenty years ago I wrote an article expressing my frustration withlegal education in this regard: Nancy L. Schultz, How Do Lawyers Really Think?, 42 J. LEGAL

EDUC. 57 (1992).5 The sample included Chapman School of Law alumni, as well as lawyers from various

areas of practice in California and Chicago who have volunteered to judge law schoolcompetitions.


2013] LAW AND NEGOTIATION 107

to which negotiation and other forms of dispute resolution functionas part of the litigation system. Is ADR really an alternative, or isit simply a more informal part of litigation? One commentator ob-served that “[r]ecent court decisions suggest that at least some ju-rists have embraced a new vision of the objectives of the justicesystem, a vision in which the purpose of legal dispute resolution isto achieve social harmony, rather than to assess factual and legalclaims and articulate public norms.”6 Others note a contraryperspective:

Because few companies have made a serious commitment toADR as a distinct system, and because there are very few rulesgoverning it, the procedure is often allowed to become a litiga-tion look-alike. Whenever that happens, the cost of ADR be-gins to approach the cost of the litigation that it’s supposed toreplace.7

[T]he contending parties often waste prodigious quantities oftime, money, and energy by reverting almost automatically tothe habits of litigation. As happened in the [previous example],lawyers make repetitious presentations of facts and legal argu-ments as if they were appearing before a judge rather than anarbitrator.8

Yet another commentator observes that “lawyers’ negotiationsare and should be conducted within the ‘shadow of the law.’”9

And another looks at the reconciliation of differences for the pur-pose of maintaining interpersonal harmony. “[T]he element of rec-onciliation does not necessarily preclude a powerful role forprinciples, rules, and precedents, although it may transmute themanner in which they operate.”10

Carrie Menkel-Meadow has long been a strong voice for theidea that ADR ought to offer real alternatives and focus on thebroader needs of parties, not just their legal entitlements:

Our legal system produces binary win-lose results in adjudica-tion. It also produces unreflective compromise—‘split the dif-ference’ results in negotiated settlements that may not satisfy

6 Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute ResolutionMovement Is Re-Shaping Our Legal System, 108 PENN ST. L. REV. 165, 192 (2003).

7 Todd B. Carver & Alberta A. Vondra, Alternative Dispute Resolution: Why It Doesn’tWork and Why It Does, 72 HARV. BUS. REV. 120, 123 (1994).

8 Id.9 Nancy A. Welsh, Perceptions of Fairness in Negotiation, 87 MARQ. L. REV. 753, 760

(2004).10 Melvin A. Eisenberg, Private Ordering Through Negotiation: Dispute-Settlement and

Rulemaking, 89 HARV. L. REV. 637, 645 (1976).



the underlying needs or interests of the parties. Humanproblems become stylized and simplified because they must takea particular legal form for the stating of a claim.11

It is almost axiomatic, for those of us who teach ADR, thatagreements that meet the needs and interests of the parties aremore likely to be followed and avoid further disputes along theway.12 Examining the needs and interests of the parties requiresboth a different sense of what is relevant to resolving a legal dis-pute and a different set of communication skills. As Menkel-Meadow has noted:

To the extent that settlement activity seeks to promote consen-sual agreement through the analysis of the point of view of theother side, it requires some different skills and a very differentmind-set from what litigators usually employ. Thus, the issue iswhether judges and lawyers in the courts can learn to reorienttheir cultures and behaviors when trying to settle cases orwhether those seeking settlement continue to do so from an ad-versarial perspective.13

The use of ADR may require some skills other than advocacy.For lawyers and judges who have been taught to argue, criticize,and persuade, rather than to listen, synthesize, and empathize,some changes in behavior will be necessary. Adversarial prac-tices may be problematic in settlement not only because of theobvious risk of stalemate and hostility, but also because extremepositions most often produce unprincipled compromise even if asettlement agreement is reached.14

In summary, by using substantive strategies such as exploringshared interests, by exploiting value differences in needs, bylooking to third parties, by sharing, by aggregating or disaggre-gating, by neutralizing, by seeking substitute goods, by exploringlong- and short-term values, and by using other specific devicesa greater number of solutions may be found. In addition, theparticular solutions may be better and the parties may be morelikely to have all or a greater number of their total needssatisfied.15

Menkel-Meadow also points out the limited remedies availa-ble in litigated disputes—essentially, money and injunctive relief—

11 Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A Tale of Innova-tion Co-Opted or “The Law of ADR,” 19 FLA. ST. U. L. REV. 1, 7 (1991).

12 See, e.g., Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Struc-ture of Problem Solving, 31 UCLA L. REV. 754, 761 (1984).

13 Menkel-Meadow, supra note 11, at 32–33.14 Id. at 36.15 Menkel-Meadow, supra note 12, at 813.



and notes that lawyers who are in litigation mode are not likely toconsider other remedies that may be more appropriate to actuallyaddressing the needs and interests of the parties:

Negotiators too often conclude that they are limited to whatwould be available if the court entered a judgment. To the ex-tent that court resolution of problems results in awards ofmoney damages and injunctions, negotiators are likely to limittheir crafting of solutions to those remedies. To the extent thata court would not allow a particular remedy such as barter, ex-change, apology, or retributory action, negotiators may reject ornot even conceive of these solutions.16

The upside-down nature of allowing litigated results to dictatenegotiated results was summed up very neatly by Menkel-Meadow:“In effect, the ten percent of cases which are tried control the typesof solutions which are achieved in the other ninety percent ofcases.”17 Nevertheless, legal dispute resolution negotiations do oc-cur in the shadow of the courts, and so legal argument seems like anatural place to start negotiating.

In his article, Condlin noted that his students were frustratedby the lack of power of their legal arguments: “After their firstdispute negotiation[,] law students report that legal argumentnever convinces anyone.”18 He argued for the importance of goodlegal argument in negotiations: “While argument is not all of nego-tiation, therefore, it is an essential part, and it is anomalous thatstudents and lawyers report as they do.”19

Condlin offered several justifications for the importance of le-gal argument in negotiations: “A settlement is attractive or not pri-marily in comparison with alternative dispositions. . . . Since a courtwill apply the law, the parties must be able to predict that applica-tion. . . .”20 Condlin continues:

If a party accepts a settlement based on an incomplete consider-ation of the relevant legal claims, the justice of that settlement isin question. The absence of good legal argument increases thatrisk. . . . In a legal system that is itself just, the justice of negoti-ated outcomes exists, at a minimum, to the extent the parties’competing legal claims are competently raised, debated, andresolved.21

16 Id. at 789.17 Id. at 792.18 Condlin, supra note 1, at 65.19 Id. at 66.20 Id. at 80.21 Id. at 82–83.



Of course, the foregoing comments assume that justice is deter-mined by law—the truth is that fairness is a highly subjective con-cept, and what is fair or just between two disputing parties mayturn on many things. Ultimately, the parties’ perceptions of justiceare probably more important than some “objective” concept of jus-tice based on legal principle—at least to the extent that serving theparties’ ideas of justice minimizes the risk of further dispute.

One of the inquiries students always make about negotiationsis how to figure out what a case is “worth.” There is a simpleformula that suggests that a case should settle for an amount that isthe product of the likelihood of success multiplied by the probableverdict.22 Both sides of this equation require the kind of predictionreferred to above: what would a court do with this dispute? Wherethe calculation gets complicated is in the sheer number of variablesthat go into the calculation of both likelihood of success and likelyverdict. There are simply too many human and non-legal factorsthat influence these variables: the quality and credibility of wit-nesses, the quality of advocacy by counsel, the judge overseeing thelitigation, the jury making the ultimate decision, the litigation andopportunity costs, the risk-averseness of the parties, and the availa-bility of evidence. Condlin describes some of this difficulty:

Awareness of where one would like the court to come out dis-torts one’s perspective and makes objective prediction difficult.Preparatory research done from this perspective gives unwar-ranted salience to arguments for (rather than against) one’s po-sition, and makes the conclusions of that research lesstrustworthy. And important factual data necessary to makingthe prediction are often within the control of the adverse partyand thus unknown. Because the possibility of unrealistic predic-tion is high and known to be so, a negotiator is almost com-pelled to argue law.23

Experts advise considering the best alternative to a negotiatedsettlement, or BATNA.24 In other words, what is the best thingthat can happen if you don’t settle? We also tell students to con-sider the WATNA (worst alternative to a negotiated agreement),and I add the MLATNA (most likely alternative to a negotiated

22 So, for example, if there is an 80% likelihood of winning a $100,000 verdict, the caseshould settle for $80,000.

23 Condlin, supra note 1, at 80–81 n.35.24 ROGER FISHER & WILLIAM URY, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT

GIVING IN 102 (2011).



agreement). These evaluations clearly require consideration of thelikely result of litigation.

Condlin goes on to explain how he thinks legal argument caninfluence negotiated outcomes:

Argument can influence a decision to settle in at least threeways. It can be true, recognized as such, and produce conces-sions out of fully informed agreement. It can be unrebuttablewithin the time frame of the negotiation, though not believed,and produce concessions out of deference to greater skill. Or itcan be invincibly sincere and strongly felt, though patentlywrong, and produce concessions out of a desire to avoid irra-tional and uneconomic deadlock.25

Some argument is successful because it is undeniably true,but most produces doubt that is not removable within the timeframe of the negotiation. A negotiator may not agree with anargument, may even believe that it is wrong, but unless he canexplain how the argument fails, he will feel compelled to deferto it in some significant way.26

Condlin also broached the need for a study of actual negotia-tions to test the hypotheses he put forward.27 I am not sure thatmy survey meets the stringent requirements he suggested for sucha real-world study,28 but it is perhaps at least an introduction tounderstanding how negotiation and law co-exist in practice.

III. THE SURVEY

Here are the questions I asked my sample of lawyers. I triedto keep the survey simple so it could be completed in a few minutesand thus hopefully enhance the likelihood of a greater responserate. There are no doubt other useful questions that could havebeen asked, but I was looking for the answer to one particularquestion: where does legal authority fit into the world of legalnegotiations?

1. What is your practice area?a. Criminalb. Civilc. Other_____________

25 Condlin, supra note 1, at 133.26 Id. at 72.27 Id. at 135–36.28 Id.



2. How many years have you been in practice?a. 0-5b. 6-10c. 11-19d. 20+

3. How many negotiations have you participated in?a. Fewer than 20b. 20-50c. 51-99d. 100+

4. Would you say that learning the applicable law plays a sig-nificant role in your preparation for negotiation?a. Yesb. No

5. Would you say that legal authority plays a primary role indetermining the outcomes of your negotiations?a. Yesb. No

6. If your answer to question 5 was yes, please explain howyou use legal authority in negotiations.

7. If your answer to question 5 was no, what factors do deter-mine negotiation outcomes? Please mark all that apply.a. Financialb. Timec. Emotionald. Bargaining powere. Negotiating skill

8. Please rank the following in terms of importance to nego-tiated outcomes:a. Legal authorityb. Financial constraintsc. Time constraintsd. Emotional issuese. Bargaining powerf. Negotiating skill

9. Please make any comments related to the subject matterof this survey that you would like to share.



IV. THE RESULTS

One hundred ninety-seven lawyers from various practice areasresponded to the survey.29 As can be seen from the questionsabove, I wanted to determine whether years in practice, number ofnegotiations, or type of practice might influence the degree towhich law dictates negotiated outcomes. As can be seen in the fol-lowing tables and charts, the results are relatively, but not entirely,consistent across all these measures; legal authority plays a role,but it is not the most important determinant of negotiated out-comes. About 60% of all the respondents say legal authority doesnot play a primary role in determining negotiated outcomes. Itgenerally ranks second or third among the choices I offered. Itdoes, however, play a large role in the preparation for negotiation.

A. Years in Practice

Across the board, lawyers at varying levels of experience re-port that learning the law plays a significant role in preparing fornegotiations, with nearly 87% of the total sample answering yes tothat question. The importance of preparation to negotiation canhardly be overemphasized.30 As Craver notes, prepared lawyersare successful negotiators, and understanding the law is a signifi-cant part of preparation.

Negotiators who consistently obtain above-average results areusually well prepared individuals who can forcefully advancetheir positions. They logically analyze the relevant factual cir-cumstances and operative legal principles to determine the opti-mal results attainable through the bargaining process.31

Individuals who carefully prepare for bargaining interactionstend to achieve more beneficial results than persons who do not.They ascertain the relevant factual, legal, economic, political,and cultural issues in recognition of the fact that knowledge ispower. They work with their clients to determine the true un-derlying needs and interests of those persons. They try to de-velop different options that could effectively satisfy those

29 The survey was sent to just under 1900 lawyers, so the response rate is just over 10%.30 See, e.g., ROBERT M. SHAPIRO, DARE TO PREPARE: HOW TO WIN BEFORE YOU BEGIN

(1st ed. 2008).31 Charles B. Craver, What Makes a Great Legal Negotiator?, 56 LOY. L. REV. 337, 339

(2010).



underlying needs and interests to enable them to explore differ-ent alternatives when they meet with opposing parties.32

Thoroughly prepared bargainers generate better results thantheir less prepared cohorts. They establish elevated, but realis-tic, aspirations for each significant item to be exchanged. Theyplan raised, but “principled,” opening offers to help themanchor the initial discussions, and they develop confidence intheir own positions. They are able to establish rapport withtheir opponents and create positive bargaining environments.They are persuasive and effective communicators and have thepatience and perseverance needed to achieve mutual accordsunder seemingly difficult circumstances.33

It is somewhat surprising that younger lawyers, those with tenor fewer years of experience, report a lower level of importance forlearning the law in preparation for negotiation, at least in terms ofthe percentage of negative responses to the question, than do moreexperienced lawyers. The idea that legal rules dictate the outcomesof disputes is, after all, how law graduates have been trained tothink, and they will likely have less legal knowledge already storedfor use in negotiations. Perhaps the more experienced lawyers sim-ply know more of the applicable law and so it automatically factorsinto their preparation, but it is difficult to explain why 17% and20% of junior lawyers report less importance for the law at thepreparation stage of negotiation, while 0% and 11% of more seniorlawyers report the same view. Given the sample size, and the vari-ety of practice areas involved, there is probably not a hugely signif-icant meaning to draw from this result, but it might make for someinteresting follow up study.

Law and Negotiations

Would you say that learning the applicable law plays a significant role in your preparationfor negotiations?

How many years have you beenin practice?

Answer Options 0-5 6-10 11-20 20+ Response ResponsePercent Count

Yes 75 35 23 37 86.7% 170

No 15 7 0 4 13.3% 26

answered question 196

skipped question 1

32 Id. at 350.33 Id. at 358.



WOULD YOU SAY THAT LEARNING THE APPLICABLE LAW PLAYS

A SIGNIFICANT ROLE IN YOUR PREPARATION

FOR NEGOTIATIONS?

0

20

40

60

80

100

120

140

160

180

Yes No

0-5

6-10

11-20

20+

With respect to the question of whether legal authority deter-mines negotiated outcomes, there is an approximately sixty-fortysplit in the total sample in favor of law not playing a primary role indetermining negotiated outcomes. It is again interesting thatyounger attorneys seem to give somewhat less deference to legalauthority in negotiating than do more experienced lawyers. Thisresponse is consistent with the result above relating to preparation,but it again seems surprising given the training law studentsreceive.


Would you say that legal authority plays a primary role in determining the outcomes ofyour negotiations?

How many years have you beenin practice?


Yes 35 17 10 19 41.3% 81

No 55 25 13 22 58.7% 115


skipped question 1



WOULD YOU SAY THAT LEGAL AUTHORITY PLAYS A PRIMARY

ROLE IN DETERMINING THE OUTCOMES OF

YOUR NEGOTIATIONS?

0

20

40

60

80

100

120

140

Yes No

0-5

6-10

11-20

20+


If your answer to question 5 was yes, please explain how you use legal authority innegotiations.

How many years have you been inpractice?

Answer Options 0-5 6-10 11-20 20+ ResponseCount

38 19 12 17 86


skipped question 111

Here are some of the explanations offered for how legal au-thority enters the conversation in negotiations:

0-5 YEARS (OF 38 RESPONSES)

“Legal authority comes up in all phases of a negotiated plea ina criminal case. From whether someone is eligible for diver-sion in a PC1000 or Prop 36 case to whether a motion to sup-press evidence is won or lost to whether the new sentencingrealignment under PC 1170(h) makes someone eligible for‘county’ prison or state prison now. The statutes and case lawinterpreting those provisions are constantly cited and reliedupon to persuade opposing counsel or the judge that the law ison your side.”

“Used extensively in determining how strong a position totake. Used also when deciding which concessions to give (i.e.an unsettled area general equals more concessions).”



“I do not feel comfortable making an offer/counteroffer with-out supportive legal authority. I do not take offers for settle-ment seriously without supportive legal authority.”

“I use legal authority to determine where my starting pointsare going to be. Generally if there is legal authority in relationto a certain issue, it makes the negotiation much easier, asthere is less question as to how the courts will decide an issue.”

“I rely on legal authority in order to help determine liabilityand estimate damages exposure.”

“Analyzing the relevant legal authority is critical in order toassess the strengths or weaknesses of your position/claim/case.Understanding the strengths or weaknesses of your positionallows you come into the negotiation with a realistic expecta-tion of what your options would be in the event the negotia-tions fall through; knowing what those options are willdetermine how aggressive you can be during the negotiationsprocess.”

“I’m a criminal prosecutor. Often, there are statutory mini-mum punishments for certain crimes, mandatory prison en-hancements, or ways to tie the judge’s hands in givingprobation. If you don’t know the law well enough to knowthese things, you will enter into ‘illegal’ plea bargains thatdon’t punish the defendant as severely as the law requires. Ioften find that the ‘counteroffers’ I get from defense counselignore these statutory restrictions.”

6-10 YEARS (OF 19 RESPONSES):

“In my experience, proposals and counterproposals are usu-ally based on the likelihood of prevailing in court. Leverage innegotiations is achieved by persuading one’s adversary thatone will prevail in court if the matter is incapable ofsettlement.”

“By shoving the legal authority down the opposing attorney’sthroat so they know they will not win a motion for summaryjudgment.”

“I’m a criminal prosecutor, so I make offers on cases depend-ing in large part on what the statutory sentencing range is foreach charge. I’m often able to negotiate plea bargains prior totrial by making defendants aware of what the statutory maxi-mum penalty would be after trial if they do not accept myoffer.”



“Most of my negotiations have been in front of a judge or me-diator in which the statute’s application is critical.”

“Generally speaking, my client is only authorized to partici-pate in negotiations with parents to the extent that it is in ac-cordance with legal authority for their position to sustain apetition and/or offer reunification services.”

11-20 YEARS (OF 12 RESPONSES):

“Legal authority is used to support the position and whetherthe authority cuts in my client’s direction will drive theamount and likelihood of settlement.”

“It shows the other side that you have a good case. Con-versely, it can warn you when you don’t have a good case.”

“Most of my negotiations are probate and trust litigation re-lated. As result, the positions of the parties are very ruledriven. Coming prepared with the legal authority (statutoryand case law) that supports your client’s position can be thedeciding factor in these types of cases. When using a mediatorwho is familiar with the particular area of law, knowing thelegal authority is critical in negotiating the settlement as it pro-vides the tools for the mediator to reinforce any particularterms of settlement.”

“Statutory authority and legal precedent play key roles; how-ever, depending on the nature of the negotiation, financialconstraints may play a more important role than legalauthority.”

“I think that if a neutral or participant is not familiar with thelaw, it makes the negotiation a waste of time because the partywho knows the law, stands firm to the legally realistic out-comes. However, once the parties have equivalent knowledgeof the law, the law is often not what defines the outcome. Ihave had cases where one party or the neutral did not knowthe law and the mediation shut down immediately with frus-tration all around.”

20+ YEARS (OF 17 RESPONSES):

“Depends whether it’s against or in favor of my client’s case.Certainly, if the legal authority was against the client in thefirst place, plaintiff’s counsel should not have taken the case.If this is a defense case, then settlement is a must.”



“The elements of the offenses charged must be met, and some-times a legal issue will determine whether the case can bemade. When a legal issue is apparent, the negotiations tip infavor of the party with the legal authority and understandingof how that statute or precedent may change the outcomebefore a jury.”

“I know that I have a weak case on the facts, or the other sidedoes. That affects what the case is worth.”

“The law is power. People get more realistic about their ex-pectations when the law preempts their puffing. Lawyers withdifficult clients also like to have a mediator/judge/ADR typeempower them by saying, ‘Well, this guy teaches this stuff andhe says the law is against us on this point.’”

“First, issues are separated into ‘legal’ and ‘other’; and prior tonegotiations I research both sides (or many sides) of those is-sues where known differing legal positions have been taken;short summaries are then reviewed one last time prior to sit-ting down at the table. I have found this approach to be in-credibly valuable because, more often than not, mycounterpart in negotiations (or both sides if I am mediating)haven’t gone this far. It creates immediate credibility, andfrankly can be a little intimidating for the other side who is notas prepared.”

These comments generally reinforce the aspects of case evaluationthat were discussed earlier in the article. For the most part, learn-ing the law is part of the process of trying to predict what a courtwill do and crafting arguments accordingly. The answers are alsofairly consistent across the years of practice.

The next questions focus on what other factors enter into de-termining the final negotiated outcomes. If not law, what elsemight be important? The obvious factors that seemed likely to in-fluence negotiated outcomes included time, money, emotions andbargaining power, as well as the skill of the respective negotiators.




If your answer to question 5 was no, what factors do determine negotiation outcomes? Pleasemark all that apply.



Financial 41 22 13 22 80.3% 98

Time 18 14 7 16 45.1% 55

Emotional 23 16 8 16 51.6% 63

Bargaining power 40 23 5 20 72.1% 88

Negotiating skill 38 19 6 21 68.9% 84

Other (please specify) 14 7 2 12 28.7% 35


skipped question 75

IF YOUR ANSWER TO QUESTION 5 WAS NO, WHAT FACTORS DO

DETERMINE NEGOTIATION OUTCOMES? PLEASE MARK

ALL THAT APPLY.

0

20

40

60

80

100

120

Financial Time Emotional Bargainingpower

Negotiatingskill

Other (pleasespecify)

0-5

6-10

11-20

20+

Not too surprisingly, money was the factor most often cited asdetermining the end result of a negotiation for most groups. Bar-gaining power, which I intended to refer to the strength of the bar-gaining positions possessed by the parties, and negotiating skill,which would focus more on the lawyers, were the next factors cited(except among the group with six to ten years of experience, whichnarrowly rated bargaining power higher than financial constraints).Of course, as Craver notes, both bargaining power and negotiatingskill are influenced by the level of preparation a negotiator brings



to the table.34 Time and emotion seemed to be viewed as less im-portant, except among the group with eleven to twenty years inpractice, which nearly evenly distributed factors other than money.I gave survey respondents the opportunity to identify other factorsthey viewed as important, and this is what they came up with:

“OTHER” RESPONSES

0-5 YEARS (OF 14)

• Exposure to insurance company and damages• How irrational the other side is.• Experience! Knowledge of judicial officers and typical

outcomes.• Toxic torts generally are negotiated with a focus on the

facts and the medical science. The legal issues (negligence,strict liability) are basic and generally aren’t brought upunless there’s a significant chance of MSJ or a unique issue.

• The particular facts of the case, including an individual’sprior criminal history.

• Hidden motives.• Victims; severity of crime.• Mediations are usually set once a theory of liability is at

least arguable, and summary judgment has been denied.Complicated legal/evidentiary arguments are often pushedto the side and practical considerations take over. Theseinclude media exposure, damages, jury-types in the locale,and the level of preparedness of counsel. Above all, realis-tic client expectations take precedence.

6-10 YEARS (OF 7)

• I think the negotiators (sic—clearly intended to say“mediators”) favor the party whose attorney will mostlikely use them again.

34 “Most of your respondents indicated that Bargaining Power and Negotiation Skill substan-tially influenced outcomes. I think that many of these persons failed to appreciate the degree towhich bargaining power is generated through a thorough knowledge of the legal principles andthe employment of that knowledge, and the degree to which their assessment of opponent nego-tiating skill reflects their degree of preparation and their ability to focus on the factual and legalissues that support their positions. You might thus wish to indicate that even though many re-spondents thought that legal authority did not play a major role in determining bargaining out-comes, that authority actually did play a significant role in determining bargaining power andtheir respect for the negotiation skill of their successful opponents.” This passage was excerptedfrom an email from Professor Craver dated January 14, 2013, after reading a draft of this article.The email is in the possession of the author.



• Many of my cases involve insurance carriers and builders.The case law is pretty well settled and most people who areat the table know it. It’s more about reducing exposure.

• As a prosecutor, typically witness issues or other unfore-seen complications on a case dictate plea negotiations. Ingeneral, applicable law and legal authority are considera-tions in the initial filing or issuing of a case; by the time thecase has been filed and I am in a position to negotiate aplea, I am well aware of any potential legal issues and assuch they have no real bearing on the negotiations.

• Information that may affect a party’s credibility at trial.

11-20 YEARS (OF 2)

• Reasonableness of negotiated outcome.

20+ (OF 12)

• In criminal practice, the rules of settling serious criminalmatters have the need for knowledge of the legal bounda-ries (PC 1192.7/1192.5; Romero discretion; whether or notcertain sentencing enhancements must be imposed or canbe stricken).

• Lack of government adherence to acceptable scientificprinciples.

• How the client comes across as a witness.• Whether parties are desirous to settle, or whether they

take irrational positions.• Potential business/reputation risks.• Although I answered “Yes” to Question 5, that does not

mean that all of the factors you list in Question 7 are not inplay. All of them are. The Emotional factor is always onethat has to be accounted for. A good negotiator tries tofind out what the case is “really about,” and that “reallyabout” factor can be as simple as He wants his tools backand She wants that inexpensive piece of jewelry.

• Experience and skill of mediator.• Party sophistication, geographic region, religion, sexual

orientation, etc.• Preparation.

Finally, I asked the survey respondents to rank the identifiedfactors, including legal authority in the mix. This is what they cameup with:




Please rank the following in terms of importance to negotiated outcomes:


Answer Options 0-5 6-10 11-20 20+ Rating ResponseAverage Count

Legal authority

1 22 7 6 7

2 8 10 4 12

3 14 7 4 4

4 22 4 6 7

5 12 7 2 5

6 11 6 1 5

3.30 3.29 2.87 3.15 3.22 193

Financial constraints

1 27 13 12 11

2 18 10 5 6

3 16 3 5 13

4 8 6 1 7

5 9 4 0 3

6 10 4 0 1

2.82 2.75 1.78 2.71 2.66 192

Time constraints

1 4 1 0 0

2 10 2 3 3

3 9 6 4 1

4 16 5 7 10

5 26 11 3 16

6 24 16 6 11

4.37 4.73 4.22 4.76 4.51 194

Emotional issues

1 5 1 3 5

2 8 5 4 9

3 13 8 2 4

4 21 6 1 4

5 15 11 5 4

6 27 9 8 15

4.28 4.20 4.09 3.93 4.17 193

Bargaining power

1 18 13 2 8

2 21 6 4 9

3 22 10 1 11

4 7 7 4 3

5 17 5 8 8

6 4 0 4 2

2.96 2.63 4.04 3.00 3.03 194



Negotiating skill

1 12 6 0 10

2 24 7 3 2

3 15 7 7 8

4 15 13 4 10

5 10 3 5 5

6 13 5 4 6

3.29 3.37 4.00 3.39 3.41 194


skipped question 3

PLEASE RANK THE FOLLOWING IN TERMS OF IMPORTANCE TO

NEGOTIATED OUTCOMES:

0

0.5

1

1.5

2

2.5

3

3.5

4

4.5

5

Legalauthority

Financialconstraints

Timeconstraints

Emotionalissues

Bargainingpower

Negotiatingskill

0-5

6-10

11-20

20+

Rating Average

Money is still the most important determining factor (exceptfor the group with six to ten years of experience, which rankedbargaining power highest, with money second), followed by bar-gaining power, and then legal authority and negotiating skill inclose proximity to each other. Only the group with eleven totwenty years of practice experience ranked legal authority as highas second in determining negotiated outcomes. That is also thesmallest group, so it is hard to read much into that result.

B. Number of Negotiations

It seemed likely that the number of negotiations completedwould correlate with years of experience, so one would expect thatthe answers to questions here would track with those above. And,



in fact, for the most part, they do, although there are some interest-ing anomalies.

For the first question, whether learning the law plays an im-portant role in preparing for negotiations, it is interesting to notethat the groups at the extreme ends of the scale, those with thefewest and the most negotiations, include the largest numbers ofrespondents who say that learning the law is not a significant partof their preparation for negotiation. Of course, those are the larg-est groups responding to the survey, but it is somewhat surprisingthat the group with the fewest negotiations has the largest numberof respondents saying that learning the law is not significant. Thisagain seems not to support the assumption that younger lawyerswill rely more heavily on the law in their preparation for negotia-tion. Without detailed follow-up, there is no way to know whythere is a relatively larger number of less experienced lawyers whoresponded “no” to this question, but the overall heavy majority infavor of learning the law in preparing for negotiations holds acrossthe board.


Would you say that learning the applicable law plays a significant role in yourpreparation for negotiations?

How many negotiations have youparticipated in?

Answer Options Fewer than 20 20-50 51-100 100+ Response ResponsePercent Count

Yes 48 44 15 63 86.7% 170

No 13 3 0 10 13.3% 26


skipped question 1





FOR NEGOTIATIONS?

0

20

40

60

80

100

120

140

160

180

Yes No

Fewer than 20

20-50

51-100

100+

With respect to the following question, we again see that thelawyers with the least negotiation experience report the leastamount of influence for the law on their negotiated outcomes. Thenumbers are much closer in the categories with more negotiatingexperience.





Yes 14 22 7 38 41.3% 81

No 47 25 8 35 58.7% 115


skipped question 1





YOUR NEGOTIATIONS?

0

20

40

60

80

100

120

140

Yes No

Fewer than 20

20-50

51-100

100+

On the question of what other factors influence negotiatedoutcomes, we again see that financial considerations lead the way,with bargaining power and negotiating skill close behind. For thegroup with the largest number of negotiations, bargaining poweractually overtakes financial considerations by a very narrowmargin.


If your answer to question 5 was no, what factors do determine negotiation outcomes?Please mark all that apply.



Financial 39 21 7 31 80.3% 98

Time 15 12 6 22 45.1% 55

Emotional 18 16 4 25 51.6% 63

Bargaining power 33 18 5 32 72.1% 88

Negotiating skill 30 19 7 28 68.9% 84

Other (please specify) 11 4 1 19 28.7% 35


skipped question 75





ALL THAT APPLY.

0

20

40

60

80

100

120

Financial Time Emotional Bargainingpower

Negotiatingskill

Other (pleasespecify)

Fewer than 20

20-50

51-100

100+

On the last question, asking participants to rank all of the fac-tors, including legal authority, we see perhaps the most surprisingresults. Lawyers with higher numbers of negotiations rank legalauthority higher than lawyers who have participated in fewer nego-tiations. In fact, the lawyers with the most negotiations rank legalauthority as the most important factor by a narrow margin, whilelawyers in the mid-range rank bargaining power at the top of thelist. Lawyers with fewer negotiations report financial considera-tions as the most important determining factor, with legal authoritycoming in fourth for the group with the fewest negotiations. Bar-gaining power is ranked fairly high across the board, in at leastsecond place for all groups. Why does more experience with nego-tiation seem to lead to a greater impact for legal authority in deter-mining outcomes? It’s hard to say—perhaps with greaterexperience, other factors such as negotiating skill tend to becomemore even, so the law is left with a comparatively greater role.Again, this question seems worthy of additional study.






Answer Options Fewer than 20 20-50 51-100 100+ Rating ResponseAvg. Count

Legal authority

1 10 10 5 17

2 7 6 2 19

3 8 9 2 10

4 13 11 3 12

5 12 6 2 6

6 10 5 1 7

3.67 3.26 2.87 2.89 3.22 193


1 24 15 4 20

2 16 11 2 10

3 11 6 4 16

4 5 5 3 9

5 3 5 0 8

6 0 4 2 9

2.10 2.70 2.93 3.03 2.66 192

Time constraints

1 2 2 0 1

2 6 5 1 6

3 10 4 1 5

4 11 9 3 15

5 18 7 4 27

6 13 20 6 18

4.27 4.57 4.87 4.60 4.51 194

Emotional issues

1 3 5 1 5

2 5 7 0 14

3 9 10 2 6

4 13 8 1 10

5 9 8 8 10

6 21 9 3 26

4.38 3.72 4.60 4.18 4.17 193

Bargaining power

1 12 9 4 16

2 13 8 4 15

3 12 13 2 17

4 9 1 3 8

5 10 13 1 14

6 4 3 1 2

3.07 3.21 2.73 2.93 3.03 194



Negotiating skill

1 8 6 1 13

2 13 9 6 8

3 10 5 4 18

4 9 13 2 18

5 8 8 0 7

6 12 6 2 83.53 3.55 3.00 3.31 3.41 194


skipped question 3



0

1

2

3

4

5

6

Legalauthority


Timeconstraints

Emotionalissues

Bargainingpower

Negotiatingskill

Fewer than 20

20-50

51-100

100+

Rating Average

C. Type of Practice

Finally, the question remained of whether different practiceareas would lead to different results in terms of what influencesnegotiated outcomes in practice. We see the same overall impor-tance attached to learning the law in preparation for negotiation:




Would you say that learning the applicable law plays a significant role in yourpreparation for negotiations?

What is your practice area?

Other Response ResponseAnswer Options Civil Criminal (please specify) Percent Count

Yes 107 30 32 86.7% 169

No 19 2 5 13.3% 26


skipped question 1



FOR NEGOTIATIONS?

0

20

40

60

80

100

120

140

160

180

Yes No

Civil

Criminal

Other (please specify)

Some lawyers preferred not to categorize themselves as havinga civil or criminal practice. Here is how they described themselves:

“OTHER” RESPONSES

0-5 YEARS (OF 10)

• Entertainment Law• Family law• Workers comp• Bankruptcy (civil)• Real Estate• Alternative Dispute Resolution (Civil & Criminal)• Mediation• Regulatory/Compliance• In house



6-10 YEARS (OF 9)

• Education• Trust and Estate• Family• In-house Corporate• Workers compensation• Juvenile Dependency

11-20 YEARS (OF 8)

• Judicial Attorney (career law clerk)• Academic• Trust & Fiduciary Administration and Services• Taxation• Transactional• Administrative• Mediation only

20+ YEARS (OF 11)

• Retired Judge: JAMS, arbitration and mediations• Civil and administrative• I do civil, criminal, bankruptcy, family, probate, construc-

tion, etc.• Family Law/Probate (ADR) Retired Sup Ct Commissioner• Government• Both criminal and civil appeals• Retired justice• Litigation support• ADR• Civil mediation/arbitrationWe see some differences in the practice areas on the question

of whether legal authority plays a primary role in determining ne-gotiated outcomes, with criminal lawyers being evenly divided onwhether law plays a primary role, while nearly 62% of civil practi-tioners say that it does not. Given the statutory basis of criminallaw, it would seem logical that plea bargaining conversations mightfocus to a greater degree on legal issues. And money is obviouslymore important in the civil context, as will be seen in the next setof charts.






Answer Options Civil Criminal Other Response Response(please specify) Percent Count

Yes 48 16 16 41.0% 80

No 78 16 21 59.0% 115


skipped question 1



YOUR NEGOTIATIONS?

0

20

40

60

80

100

120

140

Yes No

Civil

Criminal


We see a large difference in the ordering of non-legal factorsby practice area, with financial factors leading the pack in terms ofimportance to civil practitioners, followed by bargaining power andnegotiating skill. Criminal lawyers, not surprisingly, rank moneyvery low, and see greater importance, nearly equal, in bargainingpower and negotiating skill. Given the relative strength of theprosecutor’s bargaining position, it is not surprising that bargainingpower takes the lead here.




If your answer to question 5 was no, what factors do determine negotiation outcomes?Please mark all that apply.


Answer Options Civil Criminal Other (please Response Responsespecify) Percent Count

Financial 75 5 18 80.3% 98

Time 43 4 8 45.1% 55

Emotional 44 8 11 51.6% 63

Bargaining power 59 13 16 72.1% 88

Negotiating skill 56 12 16 68.9% 84

Other (please specify) 24 6 5 28.7% 35


skipped question 74



ALL THAT APPLY.

0

20

40

60

80

100

120

Financ

ialTim

e

Emotion

al

Bargain

ing po

wer

Negoti

ating

skill

Other (

pleas

e spe

cify)

Civil

Criminal


Finally, we see the same result when adding legal authority tothe determining factors list. Financial constraints are viewed asmost important by civil attorneys, followed by bargaining power,then legal authority and negotiating skill. Criminal lawyers rankbargaining power first, followed by legal authority and negotiatingskill. Even though criminal lawyers rank legal authority higherthan civil attorneys, it is still not the most important factor in deter-mining negotiated outcomes.






Answer Options Civil Criminal Other (please Rating Responsespecify) Average Count

Legal authority

1 22 11 8

2 23 3 8

3 14 11 4

4 28 4 7

5 21 1 4

6 17 1 5

3.43 2.48 3.17 3.23 192


1 51 2 10

2 31 1 7

3 25 2 10

4 11 7 4

5 4 9 2

6 2 10 3

2.13 4.61 2.72 2.64 191

Time constraints

1 2 1 2

2 12 1 5

3 14 3 3

4 24 7 7

5 32 14 10

6 41 5 10

4.56 4.52 4.30 4.50 193

Emotional issues

1 9 0 5

2 16 6 4

3 19 2 5

4 18 7 7

5 25 4 6

6 38 11 10

4.18 4.40 3.95 4.17 192



Bargaining power

1 22 13 6

2 23 9 7

3 31 4 9

4 14 1 6

5 29 2 7

6 6 2 2

3.18 2.23 3.19 3.03 193

Negotiating skill

1 18 4 6

2 20 11 5

3 22 9 6

4 30 5 6

5 14 1 8

6 21 1 6

3.52 2.71 3.62 3.41 193


skipped question 3



0

1

2

3

4

5


Bargainingpower

Legalauthority

Negotiatingskill

Emotionalissues

Timeconstraints

Civil

Criminal


Average

D. What Does It All Mean?

In general, I was not surprised by the answers I got. Clearly,knowing the law is an important part of the preparation process fornegotiation. Equally clearly, it will form part of the discussion dur-ing negotiation. But in the end, it is not the determining factor inthe outcome for most negotiators, although it does seem to play agreater role in criminal negotiations than civil negotiations. Here



are some of the final comments I received from survey participants,explaining their thoughts on the role of law in negotiation.

0-5 YEARS

“I used to practice family law, and I never settled anything.Emotions were way too high and usually precluded any rea-sonable settlement. Once I learned what judges were likely todo, it made it a lot easier to negotiate.”

“Whose emotional issues are you talking about? Sometimesan attorney’s ego can perpetuate a case. It is important to re-member you are working for the best interest of your clientnot yourself. If it’s the client’s emotional issues or the otherparty, then it is surely a factor to consider.”

“I practice civil defense for public entities. We typically do notnegotiate until after significant discovery and the filing of anMSJ, because many frivolous claims are eliminated that wayand it’s bad to set a precedent that our client will simply settlefrivolous claims. Thus, if a case gets past the pleadings or MSJstage, by that point, plaintiff typically has very little to losegoing forward with the case. Unless we believe we’re facingnear-certain exposure, negotiations are usually fruitless.”

“My experience has been that the parties themselves oftendon’t fully understand the concept of legal authority (or don’tcare) and choose to disregard/ignore the significance of itwhen choosing what to accept in negotiations. Also, oftentimes, each side seems to have a case which they think is moreapplicable than the case the other is citing & therefore the ‘le-gal authority’ arguments tend to cancel each other out for thepurposes of negotiations.”

6-10 YEARS

“We all pretend that the litigation path is unpredictable. How-ever, it really is a fairly predictable path. A good negotiator(from the plaintiff’s perspective) will walk opposing counseldown the predicable path of litigation (i.e., we both take a fewdepositions, defense files a motion for summary judgment thatit will inevitably lose because we both know there are obviousdisputed facts and, after spending at least 100k in fees, oppos-ing counsel will then finally advise the defendant of its trueexposure to liability with an upcoming trial staring at them inthe face and will recommend that the parties attend mediationwhere the defendant will likely pay six figures to resolve the



matter after already having spent six figures to get to thatpoint) and recommend that the parties explore an early reso-lution. With the litigation path being so predictable, why notexplore an early resolution (especially in fee-shifting cases)?Opposing counsel usually will not have a good answer to thisquestion since they never want to admit the true reason toavoid an early resolution (i.e., they need to bill at least 40kbefore they can approach the subject of resolution). Thus,when explained in the right way, opposing counsel are typi-cally hard-pressed to reject an invitation to explore an earlyresolution.”

“While we generally evaluate the legal issues in a settlementbrief, they rarely play a significant role in the actual settlementdiscussions. The bottom line is what the parties are willing toaccept and pay.”

11-20 YEARS

“Legal authority is very important come trial or law and mo-tion, but most negotiating is based on the financial bottomline, not the strength of the legal arguments on your side.”

“Legal authority and financial constraints can be 1 & 2 or 2 &1. Likewise, negotiating skill and time constraints can be 3 &4 or 4 & 3. Bargaining power is generally a function of legalauthority, financial constraints, and time constraints, so it var-ies from case to case and is therefore hard to gauge overall. Aclient who is well prepared can be brought through the emo-tional aspect of negotiations; however, emotional issues can bea key leverage point in dealing with opponents.”

20+ YEARS

“For number 8, facts, equities, victim impact are the key fac-tors. Skill, finances and time are really non-factors.”

“Negotiating is highly dependent on facts and whether theother party or parties believes they can overcome the facts.The reason that legal authority does not enter into it as muchis because case selection is the most important factor (fromthe plaintiff side) and that is where knowledge of legal author-ity is crucial. I don’t take legally or factually weak cases as aplaintiff attorney, and as a defense attorney I know what agood outcome looks like before I get to negotiation. Occa-sionally, a new case will come down that changes the bargain-ing power but this doesn’t happen too often.”



“All negotiations are fact based. Period! If you have strongfacts to support your position you’re going to be able to nego-tiate a good settlement; if not, the other side will know you’rebluffing.”

“Generalizations are of limited value here in my opinion, sinceany given negotiation can involve significant variance in thedegree of importance concerning legal issues. At the end ofthe day, financial considerations and constraints will almost al-ways rule the day.”

“Negotiations are dynamic and revolve around dozens of cri-teria that need to be considered by the parties and negotiators.The law and precedent are important but at different levels foreach negotiation.”On a final note, and consistent with the last comment above, it

seemed that there might be some utility in considering what causesdisputes when looking at what helps to resolve them. In order tomeet the needs and interests of the parties, we must understandwhat those needs and interests are, and surely they are a functionof what caused the problem in the first place.

In a criminal practice, the problem is caused by an alleged vio-lation of a criminal statute, so the causes of the “dispute” might beviewed as being more fixed than in other contexts; although theexplanations for criminal behavior are certainly many and varied,the definitions of crimes are fixed and the possible solutions arelimited (jail, fines, probation, community service, etc.), thus focus-ing the discussion of options for resolution.

Other disputes might be caused by perceived injury, althoughthat term itself is susceptible to a broad variety of meanings: “Dis-putes are drawn from a vast sea of events, encounters, collisions,rivalries, disappointments, discomforts and injuries. The span andcomposition of that sea depend on the broad contours of sociallife.”35 In other words, injury can arise wherever human en-counters happen and for any reason that causes human upset.

Perceived injuries can be exacerbated by pride, lack of knowl-edge, failure to communicate, or greed.36 Given the greater rangeof causes of disputes in the non-criminal context, it makes sensethat there would be a greater range of possibilities in terms of what

35 Marc S. Galanter, Reading the Landscape of Disputes: What We Know and Don’t Know(And Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L.REV. 4, 12 (1983).

36 Brit T. Brown, Common Sense Tips for Avoiding Litigation, FINDLAW (Mar. 26, 2008),http://corporate.findlaw.com/litigation-disputes/common-sense-tips-for-avoiding-litigation.html.



would resolve the dispute, although money tends to be a proxy formany things in that context.

The role of the lawyer in the dispute is also worthy ofconsideration:

[T]he lawyer as transformation agent is a critical actor, for thelawyer, in many ways, controls whether a bit of trouble or aproblem will be converted into a social, legal, or political dis-pute. This channeling by lawyers may greatly affect, if not dis-tort, our analysis of how useful disputes and conflicts are. In myview, lawyers both defuse and eliminate some disputes thatmight better be expressed as political conflicts, they exaggerateand exacerbate other disputes that could be better resolved inother ways, but they also productively and usefully structure andresolve disputes and other socio-legal relationships.37

All of these considerations are reflected in the comments ofmy survey participants. In the end, we are left with the convictionthat negotiation is a complex and human process, dependent onwhatever chemistry arises as a result of all the variables in play.

V. CONCLUSION

All in all, this limited, anecdotal study seems to support what Itell my students. Lawyers bring many things to the table in termsof preparation, persuasion, leverage, and options. They are, ofcourse, bound by their clients’ decisions in terms of what settle-ments they can accept.38 But there can be little doubt that lawyersexercise significant influence over those decisions.

Lawyers are trained in the law: to find it, interpret it, and useit. So they use that training in their negotiations as well as in theircourtroom activities. But given the broader range of options in ne-gotiations, the skilled lawyer will focus on the needs and interestsof the parties and gauge where there is flexibility. Does one partyhave greater time pressures than another? More money to throwat litigation costs or settlement? More emotional investment in aparticular outcome? A greater tolerance for risk? All of these fac-tors can be used to create bargaining leverage and ultimately craftsettlements. And all of these factors are considered in the shadowof the law, and the result that will likely follow litigation. But given

37 Carrie Menkel-Meadow, The Transformation of Disputes by Lawyers: What the DisputeParadigm Does and Does Not Tell Us, 1985 MO. J. DISP. RESOL. 25, 28 (1985).

38 MODEL RULES OF PROF’L CONDUCT R. 1.2(a) (2012).



that even litigation is a human process, dependent on human foi-bles, strengths, and weaknesses, the predictive value of the law hasits limits as well. So negotiation becomes a multi-faceted process,and lawyers have many tools at their disposal. The one thing thatis clear is that a mere knowledge of the law, even coupled with anability to use it persuasively, is not the end of the analysis.

law and negotiation: necessary partners or strange … · 7 todd b. carver & alberta a. vondra,...

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