integrative, distributive, cooperative, competition, principled, problem-solving, adversarial and positional bargaining and negotiation, alternative dispute resolution, adversary advocacy, dispute settlement, communitarianism
The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great comfort in an unfriendly and fractious world if it was true. But sadly, the assumptions communitarian bargaining theory makes about legal disputing are too idealized to serve as a guide to real-life bargaining most of the time and its tacit foundational dogma, that bargaining distributions are natural, self-evident and complementary, is based on a vision of humans before the fall. There is room for communitarian maneuvering in legal bargaining, of course. Bargaining is a complex social phenomenon in which the need to trust co-exists with the need to deceive, influence and trade, but an exclusively, relentlessly, or unqualifiedly communitarian approach to bargaining is another name for eleemosynary behavior and lawyers usually want to make deals rather than gifts. I illustrate the limits of communitarian bargaining theory by analyzing the behavior of a set of lawyers conducting a pre-trial settlement conference in a hypothetical employment discrimination lawsuit. I use a story about legal bargaining as a basis for my argument, not because of any strong belief in the efficacy of story-telling as an empirical method, but because a story situates one in the world of actual bargaining, face-to-face with the tactical and strategic decisions lawyers and clients must make and the consequences attached to making those decisions in different ways. From this vantage point, it will be apparent that most of the time lawyers and clients will be better off pursuing individual rather than communal ends and that they are more likely to do this successfully if they are secretive as well as open, argumentative as well as accommodating, suspicious as well as trusting, stubborn as well as flexible and combative as well as cordial. From the perspective of a skillful bargainer, the frequently self-defeating properties of a communitarian approach will be difficult to miss.
9 Cardozo Journal of Conflict Resolution 301 (2008)
Dispute Resolution and Arbitration