Harvard Negotiation Law Review

Negotiation Advice for the 112th Congress

by Robert C. Bordone and Tobias Berkman*

There will be many post-mortems in the wake of the historic changes brought about by the 2010 mid-term elections.  But no matter where you stand in American politics, it’s hard to disagree with Senator-Elect Rand Paul’s declaration Tuesday night that, “The American people are unhappy with what’s going on in Washington.”  It’s clear that the American people want Congress and the President to do something. Given the dire state of the economy, persisting unemployment, and ominous long-term deficit forecasts, inaction is a guarantee of stronger anti-incumbent sentiment in 2012.

With a divided government and the election of many legislators on platforms of “no compromise,” is there any hope that the next Congress will accomplish anything meaningful to address the multitude of challenges facing the nation?

We think there is.

We have devoted our professional lives to helping parties that are seemingly stuck in intractable, zero-sum conflict.  By expanding time horizons, encouraging parties to think more deeply about their interests, putting issues that the parties initially overlooked on the table, and working to improve communication and build trust, we can often uncover mutual gains that break the impasse.  Sometimes, we can even repair relationships and transform conflicts.

The atmosphere in today’s Washington feels far removed from any such rapprochement.  Nevertheless, neither party will be able to pursue a positive agenda over the next two years without the cooperation of the other.  As a result, this election presents an opportunity for members of Congress to change how they work with legislators from across the aisle.  To help them in this endeavor, we offer five basic pieces of negotiation advice for the 112th Congress:

  1. Identify win-win issues to make strategic trades. Even if voters want their representatives to fight on certain points, there are a host of other issues in which political divisions are less salient and the parties have a shared interest in progress, such as education reform, trade, national security, and long-term deficit reduction.  There are other sets of issues where one party might care a lot and the other party might be largely indifferent, such as tax cuts for clean energy companies and increased spending on infrastructure.  By trading on such issues, both parties gain.
  2. Look beyond the 24/7 news cycle.  The media’s appetite for sound bites and scandal is often insatiable.  Nonetheless, legislators have a higher purpose than showboating for the media.  Winning in 2012 or 2016 matters, but for most members of Congress, so too does the possibility of earning a reputation as a great legislator by 2025.  Our country’s most renowned legislators, people like Ted Kennedy and Richard Lugar, have also been consummate dealmakers.  Over the long term, achieving such renown requires reaching across the aisle and forging strong relationships with one’s ideological foes.
  3. Seek out low-risk venues for honest, open communication.  Contentious negotiations rarely succeed if they are held in public because the parties cannot explore sensitive trades without upsetting their constituencies.  Legislators should foster private, back-channel methods of communication that allow them to engage with the other side, not the TV cameras.  The challenge of fostering such methods has increased enormously in the age of C-SPAN and cable news.  It is nonetheless vital.
  4. Sequence issues strategically to build trust. Complex, multi-stage negotiations are most successful when the parties build trust and momentum through early wins.  When parties cooperate on small issues early in a negotiation to generate positive momentum and tangible gains, they are less likely to defect later when the issues become more challenging.  Leaders from both political parties should work together to set a legislative agenda that increases the likelihood of early victories.
  5. Engage genuine differences with vigor and principle. We are not naïve.  On at least some issues, such as tax cuts for the wealthy and healthcare, voters want their legislators to fight, not compromise.  On these issues, a spirited battle should ensue.  Keeping these differences from spilling over and poisoning progress in other domains, however, is a hallmark of a truly great negotiator.

Some believe that it is not possible for members of Congress to heed this advice in today’s political climate.  We think otherwise, and have direct evidence to inspire our hope.  In July, we worked with high-level Washington political officials, both Republicans and Democrats, to train them in creative problem solving.  Across the political spectrum, these officials demonstrated an ability to disagree with passion but also to identify shared interests and goals, to listen to each other, and to work together effectively.

There remain reasonable officials in Washington and we attribute good faith to the new members who will soon arrive in the nation’s capital.  With the right approach and incentives, the next Congress might actually accomplish something meaningful over the next two years.

*Robert C. Bordone is the Thaddeus R. Beal Clinical Professor of Law at Harvard Law School and Director of the Harvard Negotiation and Mediation Clinical Program.  Tobias Berkman is an Associate at the Harvard Negotiation and Mediation Clinical Program.

Thoughts prompted by Mnookin’s Bargaining with the Devil*

Leo F. Smyth**

Bargaining with the Devil, to Robert Mnookin, means negotiating with someone who has intentionally done harm and may well do so in the future: “an adversary whose behavior [one] may even see as evil.” 1  Should one negotiate with such a person or such a regime?  Surprisingly, in this book, the Chair of Harvard’s Program on Negotiation argues that there are circumstances in which the wise decision is to fight the harm-doer rather than negotiate.  But that decision, if it is truly wise, can be made only after a rigorous analysis of the situation.  In this book Mnookin sets out a framework to help in that analysis and illustrates it by reference to eight case histories.  The question posed by the book’s sub-title is stark: when to negotiate, when to fight?

First, I recommend you read this book for enjoyment.  So skilfully does the author craft his case histories from the bedrock of research that the book is that rare thing among works of scholarship: a page-turner.  Second, I recommend you read the book with a pen and paper by your side: there are profound questions here that will give you pause, prompt links to other literatures, and reinforce or challenge your habitual ways of thinking.

Essentially, Mnookin’s framework is a challenge to the negotiator to answer five questions that will make his or her bounded rationality less bounded. 2  Drawing on psychology to show the traps that await our thinking, such as demonization, dehumanisation of the enemy and the blood-rushing call to battle, he makes a convincing case that dealing with a harm-doer puts us all in the domain of bounded rationality. 3  There are other voices too: the call to peace, to an acceptance of shared fault and responsibility, to redemption.  Those voices also need reflection, not reflex action.  Does negotiating with harm-doers reward their behavior and make it likely to recur?  Or will the transformative power of negotiation change the harm-doer’s thinking and moral stance?  These are questions that go to the heart of the human condition.  They are the stuff of theatre and art and philosophy.  Mnookin brings them home to us in the richness of his case histories.  The questions in his framework will be familiar to those who have followed interest-based bargaining over the years – the focus on interests, alternatives, potential outcomes, costs, and prospects for implementation.  Here, they are applied where the stakes are very high: war and peace, injustice and betrayal.  In the political sphere, two of his protagonists are in jail as they make their decision to negotiate or not; two more are in the middle of World War II.  The non-political cases include a family feud, a bitter labor dispute, a business conflict bedevilled by perceived broken promises and, finally, the egocentric quicksands of divorce.

Like all case studies, the lessons learned depend on the prism through which they are understood.  Mnookin nails his colors to the mast in the following key passage: “…you can’t rely on hindsight to know whether you’re making a wise decision.  A wise decision can turn out badly; it happens all the time.  And a stupid decision can have a good outcome; you can be lucky.  So the test of wisdom cannot be whether you’re proven right in the end.  The test is, Did you think it through?” (emphasis in original). 4  This makes sense since unless one adopts a position of ‘always negotiate’ then the decision to fight needs as sound a basis as possible.

As the case histories unfold, one comes to realize just how difficult it is to apply Mnookin’s test in practice.  The story of Anatoli Sharansky, refusing the slightest cooperation with his KGB captors over thirteen years, is remarkable for the way Mnookin teases out Sharansky’s mental processes. 5  Under enormous pressure to negotiate, Sharansky maintained a sense of the inviolability of his personhood and used all the psychological traps – either-or, win-lose, demonization – to support it.  Thoughts, feelings, analysis, all had to be co-opted and rationalized in the service of intransigence.  In human terms it is not hard to see why.  A prisoner in a cell, facing death threats alternated with promises of eventual freedom, subject to ongoing attempts at brain-washing from a cell-mate almost certainly a KGB collaborator, may well feel the need to shut his mind to any data that threatens his resolve.  In the end Mnookin comes to the conclusion that his decision was wise.  I’m not so sure.  Heroic, steadfast, awesome in its courage, yes, but the price of it seemed to be a shutting down of the critical faculty, that very ‘thinking through’ that is Mnookin’s test.  I accept that some decisions have their origin in an intuition beyond logic, but, to my mind, wisdom requires that they be critically evaluated.  In looking at such decisions I tend to think in terms of dissonance: if a protagonist gives a categorical “no” to negotiation, what, I wonder, would be the costs of a “yes” decision on their mental model of the situation.  Will those of us who have not been in Sharansky’s position ever know?

Reading the case histories, readers will bring their own perspectives and conceptual preferences to bear in deciding whether the protagonists passed Mnookin’s test of ‘thinking through’.  They will have a hard time with the case of Rudolph Kasztner, Mnookin’s next case. 6  The hapless Kasztner, it seems to me, was at the opposite extreme from Sharansky – he was not free not to negotiate.  Why?  Because the structure of his predicament was such that he could try to save some Jewish lives in Nazi-occupied Hungary or try to save none.  In discussing the case Mnookin refers to Styron’s Sophie’s Choice 7 where Sophie is given the choice of saving one of her children from death or sacrificing both.

It is clear from Mnookin’s account that Kasztner had a long history as a negotiating fixer and presumably this was part of his habitual way of defining himself.  The cost in dissonance terms of not negotiating would probably have been huge; together with the compulsive quality of the situation, I suggest it was impossible.  It mattered little how implausibly bizarre Eichmann’s demands became; negotiation was still the only game in town, an increasingly forlorn hope – but still a hope – of saving some lives.  Mnookin’s account of the twists and turns of the negotiation is masterful. He reminds us that it is unfair to judge based upon outcomes and knowledge gained after the event; Kasztner had to deal with uncertainty, personal threats and lying opponents.  To be sure, questions could be asked about how much of Kasztner’s knowledge of the situation he chose to share with others; but it is hard to believe that refusing to negotiate would have materially affected anyone’s prospects for survival.  Mnookin’s conclusion that it was not Kasztner but the Nazi regime that bore responsibility for the slaughter seems fair to me.

It is almost with a sense of relief that one turns to Churchill and Mandela. 8  In these cases, not only does Mnookin’s framework come into its own, but those of us who believe in the possibility of reaching wise decisions in the midst of turmoil may find some consolation here.  Again, there is a question of past decisions, personal identity and the dissonance of going against the momentum they create.  Churchill had long seen Hitler as evil and untrustworthy, just as he had a personal identity as leader and defender of the nation.  In addition, he disliked indecision, once saying that he never worried about action, only about inaction.  Consequently, thinking through may have had a high emotional cost for him since it implied delaying a decision.  One suspects Churchill understood very well Hamlet’s observation that ‘…the native hue of resolution is sicklied o’er with the pale cast of thought’. 9  By temperament, Churchill was drawn to the native hue end of the business.  Nonetheless, when pushed, he appears from Mnookin’s account to have passed the test – he thought through the decision whether to negotiate or fight and decided to fight.

It is no surprise that the case of Nelson Mandela is altogether extraordinary.  My very first trip to the United States was to New Hampshire and I was struck by the words on the car licence plates: Live Free or Die.  Those words could easily have been a guiding slogan for Mandela.  Win-lose, either-or, no compromise.  From such a starting point, the very idea of negotiation looks like a betrayal.  And indeed, that was his starting point; but for him the momentum of past perceptions was not a predictor of his decision.  Part of Mandela’s genius was looking to the future, envisioning it and holding that vision no matter how awful, how dangerous, the present circumstances.  Thinking through for him was natural – he once complained that he had more time to think about the future of South Africa when he was in jail than when he was President – but there was little chance of his getting stuck in a Hamlet-like paralysis by analysis.  From his jail cell he moved decisively to initiate negotiations.  The risks were enormous; from the suspicions of his own constituency, to the possibilities of civil war, a military coup or partition of the country.  Only a person of outstanding willpower could have withstood the pressures; only a person of outstanding  personality strength could have brought others with him. Mnookin makes no secret of his admiration, nor do I.

But the Mandela case illustrates another aspect of the ‘negotiate/fight’ decision that I would have liked Mnookin to address more fully.  On the outskirts of Johannesburg there is an apartheid museum.  Even a casual visit there takes three hours in order to grasp the full range of legal instruments, paramilitary force and restriction of freedom  brought together to deny the rights of the majority of the population.  Even with the knowledge that the regime eventually ended, a visit there is a sobering experience.  Like Mnookin, I believe in the transformative power of negotiation. There are examples in his IBM-Fujitsu case 10 where parties that started out with totally unreconstructed win-lose attitudes eventually came to a creative search for solutions, albeit in the shadow of arbitral power.  But there exist parties for whom there is no arbitration or independent court, who dwell in conditions of structural violence; for them, fighting may be essential just to earn the right to a place at the table.  Mandela was no pacifist: he had, when no change was possible, advocated violence against the apartheid regime.  In the early pages of the book, 11 Mnookin investigates the wisdom of President Bush’s decision to invade Afghanistan rather than negotiate with the Taliban.  Guided by a series of questions, he reviews the evidence and the thinking through, concluding that fighting was the correct decision.  Fine. But we must allow a similar rationality to the dispossessed, accepting that they too may conclude fighting is the correct decision.

Clearly, this line of reasoning is fraught with danger.  Many governmental and nongovernmental groups may claim to have thought things through and now feel authorized to practise violence.  In outlining his framework Mnookin discusses the possibility of using coercive force and points out that it requires legitimacy. 12  But the full import of this point is blunted by his inclusion of lawsuits, strikes and lockouts in the list of coercive means.  Such things are coercive but are different from violence.  Lawsuits, strikes and lockouts are situations of high drama, huge emotion and easily entrenched thoughts of win-lose.  But they are not normally accompanied by serious violence to the person.  The decision to pursue such violence Violent action needs a particularly strong legitimacy.  The costs in terms of human misery and the torn fabric of society may be incalculable.  So, while defending the right of the dispossessed to adopt violence I would suggest adding some proviso like ‘where there are no political, legal, constitutional, diplomatic or other non-violent means of achieving a just outcome’.  Absent all of these, bargaining appears to be impossible, as it once did to Mandela; and those who believe in the transformative power of negotiation must direct their efforts to influencing the power-holders, that the conditions for non-violent engagement may be brought about.

Even adding a blanket proviso may not be enough.  The presumption in favor of negotiation needs to be strengthened and Mandela’s example does that.  When, from prison, he made the first negotiating approach, not much had changed in the apartheid regime.  International sanctions were hurting, yes, but practically no one would have conceived it possible that the white minority would soon agree to majority rule.  Mandela’s initiative flew in the face of any rational calculation of the odds.  It seems to have originated from, and hoped to engage, what Lederach has called the moral imagination, “the capacity to imagine ourselves in a web of relationships that includes our enemies”. 13  There are other examples where those dispossessed of all else have not been dispossessed of this; and it too needs to have a place in the thinking through.  Mnookin, I think, would not disagree.

The transformational power of negotiation is beautifully illustrated in Mnookin’s non-political cases.,  The IBM-Fujitsu case is fascinating for its first-hand account of the very unusual blending of arbitration and mediation. 14  As it became clear during the bargaining process that resolving intellectual property disputes in technical terms was well-nigh impossible, the meaning of success switched to finding some other way of making progress.

Transformation doesn’t always happen.  The divorce case 15 is sad because the attempt to get the party to think through her interests fails.  Perhaps there was a fantasy that a judge would deliver a blow to the former spouse that the protagonist herself could not.  Perhaps such fantasies in divorce cases need further investigation.

The final case, of a family disputing their father’s will, 16 has a happier outcome.  It is notable for the risk Mnookin took in putting the focus on the relationship rather than the substantive issue of property.  This is a perennial chicken-and-egg question: does improving the relationship facilitate substantive agreement or does engaging on substantive issues engender grudging respect?

I think that, sooner or later, the questions Mnookin asks will force us into a discussion of fundamental human rights.  This is implied in his dealing with the limitations of the cost-benefit analysis approach 17 and in the book’s final endnote 18 in which he ponders the possibility of a deal with the Taliban that would guarantee US security in return for the strict application of Islamic law, including the effect this would have on the rights of women.  Such questions are among the greatest challenges of our time, and one hopes the author will return to them in a later work.

On reaching the end of the book, Mnookin says his goal was not to offer easy answers but to help us think more clearly about negotiating with those who do us harm.  In this goal he has succeeded handsomely and given us a book to return to often, to pause with open page, and think.

* Mnookin, R.,. Bargaining with the Devil. New York. Simon & Schuster (2010).
**Adjunct Professor in Management, J.E.Cairnes School of Business and Economics, National University of Ireland, Galway. He can be contacted at leo.smyth@nuigalway.ie
1 Bargaining with the Devil at 1
2 Id. at 27-32
3 Id. at 18-21
4 Id. at 104
5 Id. at 36-49
6 Id. at Chapter Four
7 Styron, W., Sophie’s Choice. New York. Vintage (1979).
8 Bargaining with the Devil Chapters Five and Six
9 Shakespeare, Hamlet Act 3, Scene 1
10 Bargaining with the Devil Chapter Seven
11 Id. at 2-3 and at 6-8
12 Id. at 29
13 Lederach, J.P., The Moral Imagination. Oxford. Oxford University Press (2005).
14 Bargaining with the Devil Chapter Seven
15 Id. at Chapter Nine
16 Id. at Chapter Ten
17 Id. at 263
18 Id. at 306

Resolving Third-Party Objections to Arbitral Subpoenas Under the Federal Arbitration Act: A Suggested Approach

courtroomBy Peenesh Shah*

I. Introduction

Under Section 7 of the Federal Arbitration Act, arbitrators are empowered to subpoena third parties. When a subpoenaed third party objects, however, courts are enlisted to resolve the objection—and, when appropriate, to enforce the subpoena. Should these courts allow arbitrators to manage such disputes at the outset, considering the objection only after an arbitrator has ruled unfavorably to the objecting party? This approach is not clearly the norm under the FAA, but it is nevertheless appropriate under a fair reading of the FAA and the Federal Rules of Civil Procedure. Moreover, it is advantageous from a policy standpoint.

II. Statutory Framework

Section 7 of the FAA grants arbitrators the power to “summon . . . any person . . . as a witness.”[1] This provision further allows arbitrators to enforce such a summons “in the same manner provided by law for securing the attendance of witnesses or their punishment for neglect or refusal to attend in the courts of the United States.”[2]

Accordingly, Federal Rule of Civil Procedure 45, which deals with subpoenas in traditional litigation, also governs a Section 7 summons, or arbitral subpoena. Rule 45 protects subpoena recipients by precluding the issuing party from imposing an undue burden.[3] The rule also allows, and sometimes requires, courts to quash subpoenas under certain circumstances.[4] Finally, the Rule specifies that a court must quash a subpoena if it subjects a person to undue burden or requires disclosure of privileged matter.[5]

III. Objections to Third-Party Arbitral Subpoenas: Not “Ripe” Until a Party Seeks Judicial Enforcement

Despite Section 7’s provision allowing enforcement in the “same manner” as litigation subpoenas,[6] arbitral subpoenas operate differently from litigation subpoenas. Importantly, an arbitrator’s subpoena is not self-enforcing,[7] meaning that an objecting non-party recipient need not comply, leaving the requesting party to seek judicial enforcement.[8] The FAA does not require objecting third parties to move to quash,[9] but it is unclear whether they may be allowed to do so.[10] Nothing in the statute expressly requires courts to hear such motions to quash,[11] though perhaps a court must do so because an arbitrator’s subpoena is governed by Rule 45.

Yet, precisely because an arbitrator’s subpoena is not self-enforcing, such a dispute is arguably not “ripe” until the arbitrator seeks to enforce it over the non-party’s objections. Because a federal court may only hear “ripe” disputes,[12] a court should refuse to hear a motion to quash until a party to the arbitration petitions the court to compel compliance.

That is, the arbitrator should hear the objection in the first instance, and if his (non-binding) determination is not to sustain it, he should then move to compel. At that time, a court would make a de novo ruling on the objection. Full judicial review, in a form analogous to interlocutory appeal, allows a court to benefit from the arbitrator’s knowledge of the merits while maintaining protection of third-party rights.

IV. Why Adopt This Approach?

As a general matter, this approach is advisable for some of the same reasons that administrative law often imposes an analogous exhaustion requirement—specifically, promoting judicial efficiency and protecting the authority of the body deciding the merits.[13]

More importantly, the arbitrator is uniquely competent to resolve objections that often raise issues closely related to the merits of the dispute. Two common grounds for challenging a discovery subpoena under Rule 45 are relevance and privilege, both of which require reference to the underlying dispute. In typical litigation, for example, relevance[14] is inextricably related to the pleadings,[15] suggesting that in arbitration, these objections are best resolved by the arbitrator. Similarly, when privilege[16] is invoked in litigation, a court will balance the need for the subpoenaed information against the public interest protected by the privilege.  This balancing inquiry will necessarily reference the merits of a dispute.[17] To be fair, courts may be better positioned, for reasons of consistency and accountability, to properly protect the interests underlying various privilege doctrines; nevertheless, courts would certainly benefit from an arbitrator’s insight into the merits and the evidentiary needs of the dispute.

V. Statutory Authority for The Suggested Approach Under FAA

The FAA does not clearly proscribe the suggested approach. Some trial courts have adopted this approach,[18] while others have heard motions to quash in the first instance.[19] The issue is complicated by the common practice of taking these disputes to court on cross-motions to quash and compel,[20] a practice which suggests a generally held assumption that a court may hear a motion to quash in the first instance.

Of course, the suggested approach requires that arbitral subpoenas not be self-enforcing, which seems statutorily inappropriate in view of Section 7’s provision that, upon petition, a court may punish a person for contempt if the person neglects or refuses to comply with the arbitral subpoena.[21]

However, this provision should be read as allowing a court to punish for contempt only after issuing an order compelling compliance. This reading comports with the framework of Rule 45, which provides certain excuses allowing a person to ignore a subpoena.[22] The rule allows a person commanded to produce documents to reply to a subpoena with a written objection,[23] which excuses obeying the subpoena.[24] Similarly, the rule excuses production of electronically stored information from sources that are not reasonably accessible.[25] A requesting party may respond to these excuses by asking the court to compel compliance,[26] not unlike the FAA’s approach for compelling compliance with arbitral subpoenas.

Thus, Rule 45 establishes a framework where, if the court has the power to compel compliance, punishment for contempt may occur only after exercise of that compulsion power.[27] Reading Section 7 as mimicking this framework—requiring a successful petition to compel before a person may be punished for contempt—makes good sense. Indeed, the Fourth Circuit seems to have adopted this interpretation, holding that the recipient of an arbitral subpoena is under no obligation to challenge the subpoena,[28] implying that the person cannot be punished for contempt if he does nothing.

VI. Current Trends

Despite some earlier decisions in which the court ruled on relevance,[29] the emerging consensus is deference to arbitrators on this question.  The Sixth Circuit has noted the limited nature of a court’s power to disturb an arbitrator’s judgment as to relevance.[30] The Eighth Circuit has stated that second-guessing an arbitration panel’s judgment as to materiality is “antithetical to the well-recognized federal policy favoring arbitration, and compromises the panel’s presumed expertise in the matter at hand.”[31] The Northern District of Georgia has ruled that the determination of materiality to the underlying dispute belongs to the arbitrator.[32]

As discussed above, a court has a greater role to play in resolving privilege objections. Accordingly, even as courts seem willing to defer to arbitrators on relevance, some are more active in their review of questions of privilege.[33] Others, however, have deferred to arbitrators on this point.[34]

VII. Conclusion

The FAA intends to encourage and foster effective arbitration. The proposed scheme serves this goal by broadening the implementation of arbitrators’ power to subpoena third parties. Because the scheme is not contrary to the text of the FAA, its adoption need not wait for legislative action. While the proposed approach has already been accepted in some measure, arbitral outcomes would benefit from further judicial adoption.

*Peenesh Shah is a student at The University of Texas School of Law. He will receive his Juris Doctor degree in May 2010. Thanks to Professor Alan S. Rau for guidance and helpful comments.

[1] 9 U.S.C. § 7 (2006) (emphasis added).

[2] Id.

[3] See Fed. R. Civ. P. 45(c)(1).

[4] See Fed. R. Civ. P. 45(c)(3).

[5] See Fed. R. Civ. P. 45(c)(3)(A)(iii)-(iv).

[6] See 9 U.S.C. § 7 (2006).

[7] See Unif. Arbitration Act § 17 cmt. 8 (2000).

[8] Id.

[9] COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999) (“once subpoenaed by an arbitrator the recipient is under no obligation to move to quash the subpoena”).

[10] See infra note 19.

[11] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (“the FAA nowhere explicitly gives a person subpoenaed to an arbitration the right to move in a federal district court to quash the subpoena”).  But see infra note 19.

[12] See U.S. Const. art. III. For an analysis of the constitutional and prudential dimensions of ripeness, see Gene R. Nichol, Jr., Ripeness and the Constitution, 54 U. Chi. L. Rev. 153 (1987). The arguments presented here, however, are of equal force regardless of whether one views ripeness as a constitutional or prudential matter.

[13] For an excellent discussion of these policy concerns, see McCarthy v. Madigan, 503 U.S. 140, 144-46 (1992) (“The exhaustion doctrine also acknowledges the commonsense notion of dispute resolution that [a decision-maker] ought to have an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.”).

[14] Though Rule 45 does not discuss relevance as grounds for objection, courts tend to incorporate, either explicitly or implicitly, the Rule 26(b)(1) standard into Rule 45’s undue burden test. See 9 James Wm. Moore et al., Moore’s Federal Practice ¶ 45.03[1] (3d ed. 2009); Fed. R. Civ. P. 26(b)(1); see also Sterling Merch., Inc. v. Nestle, S.A., 2008 U.S. Dist. LEXIS 31938 (D.P.R. Apr. 15, 2008) (applying the Rule 26 relevance standard to a motion to quash, under Rule 45, a subpoena for imposing an undue burden); Syposs v. United States, 181 F.R.D. 224, 226 (W.D.N.Y. 1998) (“The reach of a subpoena issued pursuant to Fed. R. Civ. P. 45 is subject to the general relevancy standard applicable to discovery under Fed. R. Civ. P. 26(b)(1).”); Transcor, Inc. v. Furney Charters, Inc., 212 F.R.D. 588, 591 (Kan. 2003) (“Fed. R. Civ. P. 45 does not include relevance as an enumerated reason for quashing a subpoena. It is well settled, however, that the scope of discovery under a subpoena is the same as the scope of discovery under Rule 26(b). . .”).

[15] See, e.g., Bariteau v. Krane, 206 F.R.D. 129, 131 (W.D. Ky. 2001) (finding, in traditional litigation, after examining the individual claims in the plaintiff’s complaint, that materials requested by subpoena were relevant), Barkan v. Dunkin’ Donuts, Inc., 2008 U.S. Dist. LEXIS 34608 (D.R.I. Apr. 28, 2008) (quashing a subpoena as overly broad where plaintiff pleaded two theories of damages, but one was disallowed, and the request did not specify which materials were relevant to liability, or which materials were relevant to which damage theory).

[16] Unlike the relevance requirement, the privilege exception is expressly contained in Rule 45. Fed. R. Civ. P. 45(c)(3)(A)(iii). However, it is important to recognize that Rule 26 is also operative – a person seeking to avoid a subpoena on this basis may obtain a protective order under Rule 26(c). See Moore et al., supra note 14, ¶ 45.30. Also, the standards of privilege under Rule 45 and Rule 26 may overlap. See Mannington Mills, Inc. v. Armstrong World Indus., 206 F.R.D. 525, 529 (D. Del. 2002) (“A nonparty moving to quash a subpoena, in essence, is the same as moving for a protective order that such discovery not be allowed.”).

[17] See In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606, 613-614 (E.D. Va. 2008) (declining to reach the merits of the privilege claim asserted by non-parties in response to a subpoena, because the court in which the action was pending was better positioned to determine whether the information requested by subpoena was privileged as it pertained to claims and defenses associated with that action).

[18] E.g., Fed. Ins. Co. v. Law Offices of Edward T. Joyce, P.C., 2008 U.S. Dist. LEXIS 20713 (N.D. Ill. Mar. 13, 2008) (motion to quash third-party subpoena based on irrelevance, privilege, over-breadth, and timeliness raised issues that should not be decided by a court in the first instance, but rather by arbitrator). Notably, the Supreme Court of California has recently adopted an approach very similar to what this paper suggests, albeit in a case governed by California’s arbitration statute, which uses language somewhat broader than what is found in the FAA. See Berglund v. Arthroscopic & Laser Surgery Center of San Diego, L.P., 187 P.3d 86 (Cal. 2008).

[19] See, e.g., Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 71-72 (S.D.N.Y. 1995) (noting that “the court may also consider a petition to quash; there is no requirement that a petition to compel be made first,” citing Commercial Metals Co. v. International Union Marine Corp., 318 F. Supp. 1334 (S.D.N.Y. 1970)), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[20] See, e.g., Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 214 (2d Cir. 2008).

[21] 9 U.S.C. § 7 (2006).

[22] Fed. R. Civ. P. 45(e) (a person may be punished for contempt if he, “having been served, fails without adequate excuse to obey the subpoena”) (emphasis added).

[23] Fed. R. Civ. P. 45(c)(2)(B).

[24] See Moore et al., supra note 14, ¶ 45.41[2][b]; see also Bariteau v. Krane, 206 F.R.D. 129, 131-32 (W.D. Ky. 2001) (noting the prevailing view that timely objection to a subpoena constitutes adequate excuse, and denying motion to hold subpoena subject in contempt, but also issuing order to compel compliance with same subpoena, and advising serving party that he may renew motion for contempt upon noncompliance with said order).

[25] Fed. R. Civ. P. 45(d)(1)(D).

[26] Fed. R. Civ. P. 45(c)(2)(B)(i), 45(d)(1)(D).

[27] Indeed, there is some authority, though not a consensus, that an order compelling compliance is a general prerequisite to an order punishing for contempt. See Moore et al., supra note 14, ¶ 45.62[3].

[28] See COMSAT Corp. v. NSF, 190 F.3d 269, 276 (4th Cir. 1999).

[29] See Oceanic Transport Corp. v. Alcoa S.S. Co., 129 F. Supp. 160, 161 (D.N.Y. 1954) (vacating subpoena served on third party witness in arbitration proceeding, noting that “it is a fact that when the statute imposed upon the District Court the duty to determine whether or not to compel the attendance of a witness and his production of papers, it imposed upon the Court the duty to determine whether or not the proposed evidence is material.”); see also Reuters Ltd. v. Dow Jones Telerate, 231 A.D.2d 337, 344-45 (N.Y. App. Div. 1st Dep’t 1997) (reversing, under New York state law, lower court’s granting of a motion to compel an arbitral subpoena on a non-party because requested materials were relevant to the theory raised in the arbitration).

[30] American Fed’n of TV & Radio Artists v. WJBK-TV, 164 F.3d 1004, 1010 (6th Cir. 1999) (finding error where the district court had refused to enforce a subpoena against a third party because the requested material was irrelevant); see also Meadows Indem. Co. v. Nutmeg Ins. Co., 157 F.R.D. 42, 44 (M.D. Tenn. 1993) (refusing to second guess an arbitration panel’s determination as to relevance when denying non-party’s motion for protective order filed in response to an arbitration panel’s subpoena).

[31] Sec. Life Ins. Co. of Am. v. Duncanson & Holt (in Re Sec. Life Ins. Co. of Am.), 228 F.3d 865, 871 (8th Cir. 2000) (affirming an order enforcing a subpoena issued by an arbitration panel, ruling that whether or not the subject was determined to be a party to the arbitration was irrelevant).

[32] Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (referencing Sixth and Eighth Circuit opinions in a ruling compelling two non-party objectors to comply with subpoenas issued in arbitration).

[33] See Festus & Helen Stacy Found., Inc. v. Merrill Lynch, Pierce Fenner, & Smith Inc., 432 F. Supp. 2d 1375, 1380 (N.D. Ga. 2006) (directing relevance objections to arbitrator, but issuing a finding, after reviewing the provided motions and briefs, that the confidentiality concerns were not sufficiently compelling to excuse non-party from compliance with subpoena); Integrity Ins. Co. v. American Centennial Ins. Co., 885 F. Supp. 69, 73 (S.D.N.Y. 1995) (ruling on non-party’s privilege objection because the issue would “doubtless resurface at the arbitration hearing”; held, privilege did not protect requested information), abrogated on other grounds by Life Receivables Trust v. Syndicate 102 at Lloyd’s of London, 549 F.3d 210, 215 (2d Cir. 2008).

[34] See Odfjell ASA v. Celanese AG, 348 F. Supp. 2d 283, 288 (S.D.N.Y. 2004) (non-party objections on the grounds of privilege “should first be heard and determined by the arbitration panel before whom the subpoena is returnable, and hence, even assuming arguendo that this Court has jurisdiction to consider the motion to quash, the motion must be dismissed at this stage as unripe”); Odfjell ASA v. Celanese AG, 2005 U.S. Dist. LEXIS 729 (S.D.N.Y. Jan. 15, 2005) (same non-party in same underlying case sought to obtain confidentiality order broader than that which was granted by arbitration panel, but the court refused to “disturb the decision of the arbitration panel not to issue a protective order . . . . The panel’s decision is entitled to considerable deference, given the panel’s hands-on familiarity with the case and with the confidentiality issues here presented.”); Odfjell ASA v. Celanese AG, 380 F. Supp. 2d 297, 298 (S.D.N.Y. 2005) (same non-party, same underlying case, but here, the court determined that the arbitration panel had abused its discretion in not allowing non-party to present certain evidence supporting a claim of privilege; rather than ruling on the issue itself, however, the court remanded the issue to the arbitration panel to have the excluded evidence heard).

Originally published to HNLR Online on Mar. 25, 2010.

The Negotiation Within: Outer Ideas on Inner Dialogues

figure-at-a-window3By Jonathan R. Cohen[1]

“Where there are two Jews, there are three opinions.”

When I first read Bob Bordone’s e-mail describing the symposium on “The Negotiation Within,” I was of two minds. Part of me wanted to attend. The subject was intriguing, the panelists included many old friends, and a trip back to Cambridge would be enjoyable. Yet another part of me knew that I would not go. For roughly two decades I have observed the Jewish Sabbath, and this conference, like many others, was to meet on a Saturday. My inner dialogue was brief (or so I thought at first). A Shakespearean actor might have put it thus, “To go or not to go – that is the question.” My answer: not to go.

Life, however, can be more complex than first appears, and the next morning I awoke with a number of thoughts racing through my head – specifically, ideas I might have shared had I gone to the conference. What was I to do with them? In the language of negotiation, “going” and “not going” are, of course, positions. But what interests underlay those positions? Could those interests be addressed creatively through inventing options? Yes, it was possible to observe the Jewish Sabbath and it was possible to be involved with the conference, at least in part. Perhaps I could write some ideas and send them along. Perhaps I would later read what others wrote about “The Negotiation Within” and discuss their ideas with them on different occasions. My original inner dialogue had been built around positions, but after a night’s sleep it shifted to exploring interests and options.

I suspect that in many negotiations each party is of multiple minds. Sometimes such internal division is easy to observe, as when bilateral negotiations involve principals who are groups. When a union negotiates a labor contract with management, there may be different factions within the union, each vying for different ends. Part of the union may want this. Part of the union may want that. How is the union representative to proceed?

I suspect the conventional wisdom (if such exists) is that, before entering “across the table” negotiations with management, the union should try to resolve its internal conflicts.[2] Not only would it be difficult for the union’s representative to know what to say to management if such “behind the table” conflicts are not resolved, but if such fissures are not addressed proactively, the potential exists for the other side to exploit them. Perhaps management can gain a strategic edge through offering a deal that benefits both itself and one, but not both, of the union’s factions – divide and conquer, if you will. It is not uncommon for parents of small children to encounter a similar challenge. Before deciding upon a rule for a child, it is important for both parents to be “on the same page” lest the child play the forum-selection game of shopping for rules by seeking the more lenient parent.[3]

Now let us take up the more interesting case – for it is the more common case – of when such internal fissures are not readily observable. What happens when a party entering a negotiation, or more generally making a decision, is of two (or perhaps even three or four) minds? How then is that party to proceed?

Sometimes people approach such internal negotiations in a combative way, and an internal battle of the wills ensues over which side will triumph. One might think by analogy of the famous problem of Ulysses and the Sirens, or, more generally, the “intimate contest for self-command” as Thomas Schelling put it.[4] When two parts of ourselves are in conflict with one another (in Ulysses’ case, because his current self fears that his future self will be seduced by the sound of the Sirens and thus opts to bind himself to his ship’s mast to prevent his future self from departing), the question becomes which part will prevail in the battle over what to do. Think of the dieter’s dilemma when confronted by a bowl of chocolates. “Oh, they look so good … I want to eat some,” says the voice of indulgence. “Don’t touch them,” barks the voice of restraint. The inner discourse, in other words, is built around positions.

My suggestion here is that we take some of the qualities and ideas we have learned from external negotiations and apply them to our inner dialogues. “Why do you want to eat the chocolates?” the voice of restraint might ask. “Because I’m bored,” “because I’m upset,” and “because I’m hungry” are all possible answers. Each of these answers reveals a different interest and points to different possible solutions (e.g., finding a fun activity in which to engage, finding a different way to soothe oneself, or finding a healthier food to eat). As with so many of our external negotiations, the critical question becomes whether our inner dialogues will be problem-solving ones or positional ones.

Could it be that, when all is said and done, how we talk and negotiate with other people and how we talk and negotiate within ourselves are deeply connected?I do not mean to suggest that this connection is simple.If the data point I know best – me! – is any guide, one’s outer negotiation style and one’s inner negotiation style can be quite different.The Myers-Briggs introvert that I am, it is not uncommon for my inner negotiations to be very long, but my outer negotiations brief.Nevertheless, I suspect that often there is much consistency to how we do what we do, so that how a person conducts inner conversations and how he or she approaches outer conversations will be similar.Am I optimistic that solutions can be found to difficult situations?Am I capable of listening to seemingly-incompatible views and probing for what is valid within each?Do I express myself in measured language or am I prone to hyperbole?If a person has an attitude like optimism or habits such as open-minded listening and measured speaking in one realm, I suspect it is much more likely, though not inevitable, that he or she will have them in the other realm, too.

Suppose the hypothesis is true that there is a significant connection between how we talk and negotiate within ourselves and how we talk and negotiate with others. If so, a number of lessons follow for those who teach and practice negotiation. Let me mention two. First, getting people to think about their internal negotiations may be extremely valuable in helping them to change their approach to external negotiations. Books such as Difficult Conversations (with its emphasis on examining the impact of internal identity conflicts on external negotiations) and research on topics such as the role of emotions in negotiation and mindfulness in dispute resolution have already started us down this path.[5] It is a path we should pursue further. Second, as we teach people to approach their outer negotiations in new ways, we may also indirectly be teaching them to approach their inner negotiations in new ways. Internal transformation, is not, of course, the primary aim of most negotiation courses. However, if internal and external negotiation styles are deeply linked, then as we influence the latter, we may also be influencing the former. How distinct, after all, is the internal from the external? Viewed from afar, the line between them is only skin deep.

For more on the 2010 HNLR Symposium: The Negotiation Within, click here.

1 Professor of Law, University of Florida, Levin College of Law. The author can be reached at cohenjr@law.ufl.edu.

2 The Janus-like role of the union’s agent – negotiating both with management and with internal factions – is ultimately a very complex one. On labor negotiations specifically, see Richard Walton & Robert McKersie, A Behavioral Theory of Labor Negotiations (1965). On challenges negotiating agents face generally, see Robert H. Mnookin & Lawrence E. Susskind, Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else (1999).

3 Even where parties to negotiations are single individuals rather than groups, sometimes one party can sense the other party’s ambivalence regarding a particular issue. While at times it may be beneficial for the ambivalent party openly to share that ambivalence with the other party (for they may help one better understand or resolve it), due to the adversarial aspects of many negotiations, I believe the more typical approach is to attempt to resolve that internal ambivalence before entering the external negotiation.

4 See Jon Elster, Ulysses and the Sirens (1985) and Thomas C. Schelling, The Intimate Contest for Self-Command, in Choice and Consequence: Perspectives of an Errant Economist 57 (1984).

5 See respectively Douglas Stone et al., Difficult Conversations: How to Discuss What Matters Most 109-120 (1999), Roger Fisher & Daniel Shapiro, Beyond Reason: Using Negotiations as You Negotiate (2005), and Leonard Riskin, Knowing Yourself: Mindfulness, in The Negotiator’s Fieldbook 239 (Andrea Kupfer Schneider & Christopher Honeyman, eds., 2006).

Originally published to HNLR Online on Mar. 18, 2010.

New Perspectives in Negotiation: A Therapeutic Jurisprudence Approach

scales_gavel2By Andrew F. Amendola*

I. Introduction

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.  Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.  This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.  For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.  For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney’s increased receptivity to their client’s interests, and greater client involvement, which acts as an empowering tool, enhancing the client’s overall well-being.  The result is a more gratifying interaction and overall improved satisfaction with outcomes.

II. The Adversarial Style

The methodology of negotiation has long been associated with aggressively adversarial tactics.  This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.  Most adversarial negotiators view the process as a zero-sum, win/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]

The adversarial negotiator’s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2] Some lawyers advocate this style, professing its effectiveness in increasing their clients’ gains and avoiding exploitation.[3] It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4] the adversarial approach produces optimal results.[5]

The adversarial approach is not the optimal method for all situations, however.  The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6] It also tends to remove the client from the negotiation equation, which may result in the attorney’s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7] Furthermore, an attorney’s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: “effective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.  The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.”[9] Additionally, Kupfer found that “over 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.”[10]

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being—as well as the effectiveness—of both the attorney and the client.  The adversarial approach is often characterized as “attacking.”[11] When an individual feels attacked, a neurological reaction takes place.  In the brain, the hippocampus induces a heightened sense of alertness (described as the “fight or flight” reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12] This reaction causes extreme stress and anxiety.[13] The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which “heightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.”[14] High levels of cortisol also produce distraction, mental errors, and “impairment in the ability to remember and process information.”[15]

A. The Source of the Adversarial Mentality

The American legal system is undoubtedly based on the concept of adversarialism.[16] Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17] A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18] The sense of competition inherent in the law school experience causes significant changes in students’ attitudes, values, and motivations, reduces students’ desire for cooperation, and diminishes overall personal well-being.[19] The common teaching style instills in law students the binary, win/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]

B. Effects of an Adversarial Approach on The Client

There are many aspects of the legal process which may produce a strongly negative reaction in the client.  These aspects are called psychological soft spots.[21] For example, sometimes the legal issue confronted by the client—which brought her to seek an attorney’s services in the first place—or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22] These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23] inhibiting the attorney/client relationship, preventing the attorney from learning the full extent of the client’s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys’ counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25] The adversarial perspective fails to address these feelings because it operates in a binary, win/lose fashion.[26] This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]

C. Effects of an Adversarial Approach on The Attorney

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.  This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28] Professor Susan Daicoff notes that attorneys’ sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]

These feelings of professional dissatisfaction unsurprisingly also affect attorneys’ quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]

The adversarial mindset can cause attorneys to misread their clients’ needs; “[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.”[31] The adversarial approach encourages attorneys to “transform complex, human situations into a dry set of facts that fit into legal rules.”[32] Locked into a win/lose mentality, the adversarial attorney is incapable of assessing the client’s true needs, maximizing value, or addressing underlying sources of dispute.[33]

III. Developments in Negotiation

Negotiation need not be a deleterious process.  In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34] Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.  Among these approaches are the cooperative style, integrative bargaining, and collaborative lawyering.  These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.

A. Cooperative Style

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35] The cooperative negotiator “communicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.”[36] A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side’s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.  If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.  The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38] When presented with a cooperative opponent, an adversarial negotiator will often “increase their demands and expectations about what they will be able to obtain.”[39]

B. Integrative Bargaining

The integrative negotiator focuses more on “interests” than “positions,” using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on “opportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,”[40] essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.  In such situations, “rigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.”[41]

C. Collaborative Lawyering

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42] Its objective is “to change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.”[43]

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.  First, clients actively participate in the process and retain ultimate decision-making authority.  Second, both parties openly share all information relevant to the dispute.  Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.  Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.  Also, the threat of litigation may not be used to coerce settlement.  Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.  Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44] Similarly, the participating attorneys, though remaining advocates for their clients, are committed to “keep[ing] the process honest, respectful, and productive on both sides.”[45]

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46] Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]

Collaborative Lawyering is not without its disadvantages, however.  There are concerns that the process may violate the ethical requirement to zealously represent a client’s interests.  Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.  Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.

IV. Therapeutic Jurisprudence

Therapeutic Jurisprudence is the “study of the role of the law as a therapeutic agent,” focusing on “the law’s impact on emotional life and psychological well-being.”[48] The movement represents the idea that the law—including the rules of law, legal procedures, and the roles of legal actors—serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.  It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49] Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia,[50] Therapeutic Jurisprudence encourages lawyers to “attempt to create the most beneficial and emotionally satisfactory solution given a particular client’s interests and circumstances,” thus providing a therapeutic outcome.[51] Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52] tort law, criminal law, and contract law.[53]

V. A Therapeutic Jurisprudence Application to Negotiation

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.  A Therapeutic Jurisprudence approach which takes into consideration clients’ interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: “[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.”[54]

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55] Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56] Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.  This effort can have a significant impact on the client’s satisfaction with the resolution and the legal counsel received.[57]

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.  There are still many uncertainties and problems surrounding its application.  For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58] and its effects too difficult to measure accurately.  Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client’s constitutional concerns, the attorney’s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]

VI. Conclusion: A Measured Approach

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.  It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.  To have the greatest impact and stamina, this change must be initiated early.  Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.  Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.  While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.  Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.  Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.  Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]

*Andrew F. Amendola is an attorney and author residing in Connecticut. He received his Juris Doctor degree in 2009 from the University of Connecticut School of Law.

[1] See Julie Macfarlane, Dispute Resolution Readings and Case Studies 175 (2d ed. 2003) (explaining the way many adversarial negotiators view their role in the process).

[2] Id.

[3] See Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143, 146–47 (2002) [hereinafter “Shattering Negotiation Myths”].

[4] The Negotiation Academy, Collaborative Negotiation Strategy, available at http://www.negotiationtraining.com.au/articles/negotiating-collaboratively/.

[5] A seminal study on the effectiveness of negotiation approaches used by lawyers confirmed that an attorney can be very effective or very ineffective within the constraints of either the adversarial or cooperative methods.  Gerald R. Williams, Legal Negotiation and Settlement 18–19 (1983). However, there are more effective cooperative than effective adversarial negotiators.  Id. at 49.

[6] Macfarlane, supra note 1, at 175.

[7] Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes, 5 Harv. Negot. L. Rev. 113, 128–29 (2000) [hereinafter “Building a Pedagogy of Problem-Solving”].

[8] See, e.g., John G. Koetltl, U.S. District Judge for the Southern District of New York, From the Bench, 23 Litigation 3 (1997); Stuart Taylor Jr., Sleazy in Seattle, Am. Law., Apr. 1994.

[9] Shattering Negotiation Myths, supra note 3, at 147–48.

[10] Id.

[11] See Macfarlane, supra note 1, at 171, 172.

[12] Bruce Winick, Therapeutic Jurisprudence and the Role of Counsel in Litigation, 37 Cal. W. L. Rev. 105, 110 (2000).

[13] Id.

[14] Id.

[15] Id.

[16] See, e.g., Urska Velikonja, Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice, 72 Alb. L. Rev. 257, 260 (2009) (“[t]he United States, on the other hand, has relied on an adversarial system of judicial dispute resolution, where each side presents its case and a jury decides the winner.”).

[17] Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 Am. U. L. Rev. 1337, 1353–55, 1403 (1997).

[18] See, e.g., Connie J. A. Beck, Bruce D. Sales, & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & Health 1 (1996).  The authors explain that certain psychological distress symptoms “are not exhibited when the lawyers enter law school, but emerge shortly thereafter and remain, without significant abatement, well after graduation from law school.”  Id. at 2.  The authors also note that in a 1986 study prelaw students did not show significant elevations of psychological distress when tested in the summer prior to law school entry.  Yet, within two months of beginning law school the students’ psychological distress was found to be significantly elevated.  Depending on the group (first, second, or third year), the authors found that 17–40% of the law students fell above the cutoff on symptoms relating to depression.  Of these same students, 20–40% also fell above this cutoff on symptoms relating to obsessive-compulsiveness, interpersonal sensitivity, anxiety, hostility, and paranoid ideation in addition to social alienation and isolation.  A similar pattern was found in law school alumni two years post-graduation.  On a global measure of distress (GSI), the authors found that 17.9% of these lawyers fell above the cutoff for the non-patient normal population mean. In comparing the students at their third year of law school and then two years post-graduation, the study found that symptoms present during the third year had not diminished significantly during the lawyers’ first two years of practice. Id. at 4; Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal Educ. 112, 113 (2001–02).  Additionally, Dr. Andrew Benjamin found that students

[b]ecome much less healthy soon after entering law school.  For example, our research data (and subsequent replications by others) have revealed that before entering law school, only four percent of students suffered from depression, a figure expected from any normal population.  During the first year of law school, about 20% of the students developed depression.  By the third year of law school, 40% of the law students had developed statistically significant levels of depressive symptoms.

Andrew Benjamin, The Role of Law School in Producing Psychological Distress Revisited, available at http://www.law.fsu.edu/academic_programs/humanizing_lawschool/images/benjamin.pdf.

[19] See generally Krieger, supra note 18; Lawrence S Krieger, What We’re Not Telling Law Students and Lawyers That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession From the Roots, 13 J.L. & Health 1 (1998–99); Lawrence S. Krieger, Psychological Insights: Why Our Students and Graduates Suffer, and What We Might Do About It, 1 J. Ass’n. of Legal Writing Directors 259 (2002); Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being, 22 Behav. Sci. & L. 261 (2004) (presenting and discussing empirical evidence of the psychological effect law school has on students).

[20] Krieger, supra note 18, at 117.

[21] Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 Clinical L. Rev. 605, 610–11 (2006).

[22] Id. at 610.

[23] Id. at 610–11.

[24] Id. at 610.

[25] See Leonard L. Riskin, Mindfulness in the Law and ADR: The Contemplative Lawyer: On the Potential Contributions of Mindfulness Mediation to Law Students, 7 Harv. Negot. L. Rev. 1, 13 (2002).

[26] See Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 Harv. Negot. L. Rev. 103, 118–19 (2005).

[27] See Building a Pedagogy of Problem-Solving, supra note 7, at 128–29.

[28] See Riskin, supra note 25, at 8.  Approximately 20% of attorneys are extremely dissatisfied with their jobs.  Moreover, 19% of attorneys suffered from depression (as opposed to 3–9% in the general population), and 15–18% suffered from substance abuse (as opposed to 10–13% in the general population).  Daicoff, supra note 17, at 1347.  Lawyers also have higher rates of anxiety, divorce, and substance abuse than both the general population and members of other professions.  Id.

[29] Id. at 1334–45.  Daicoff found that

[t]he vast majority of commentators generally agree that the level of “professionalism” displayed by attorneys has declined dramatically in the last twenty-five years. They point to the following as evidence: (1) a decline in civility and courteous conduct between lawyers, an increase in unethical or uncivil behavior among lawyers and judges, frequent lapses of appropriate ethical and professional conduct, and increasingly aggressive, competitive, and money-oriented legal battles, fought with a “win at all costs” approach; (2) increased competition and pressure to win—and the underlying theory that law has become a “business” rather than a profession, placing a heightened emphasis on materialism and money; (3) a decline in attorney and client loyalty to the law firm; (4) frequent and abrupt dissolutions and reconstitutions of large law firms; (5) an increase in aggressive lawyer advertising; and (6) a perceived general decline in lawyers’ values, ideals, and morals.

Id.

[30] See Riskin, supra note 25, at 13.

[31] Id.

[32] Id.

[33] Id. at 16–17.

[34] See Winick, supra note 12, at 112–13.

[35] Colleen M. Hanycz, Trevor C. W. Farrow & Frederick H. Zemans, The Theory and Practice of Representative Negotiation 254 (2007).

[36] Id.

[37] Id. at 255.

[38] Julian Webb et al., Lawyers’ Skills 2007–2008 154 (2007).

[39] Id.

[40] Hanycz et al., supra note 35, at 45.

[41] Id. at 46.

[42] Julie Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. Disp. Resol. 179, 180 (2004).

[43] Id. at 186.

[44] Douglas C. Reynolds & Doris F. Tennant, Collaborative Law—An Emerging Practice, 45 B.B.J. 12, 12 (2001).

[45] Pauline H. Tesler, Collaborative Law 7 (2001).

[46] Macfarlane, supra note 42, at 186.

[47] Id. at 190–92.

[48] David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev. 125 (2000).

[49] Id.at 125.  Bruce Winick summarized the impetus behind the Therapeutic Jurisprudence movement stating that

[o]nce it is understood that rules of substantive law, legal procedures, and the roles of various actors in the legal system such as judges and lawyers have either positive or negative effects on the health and mental health of the people they affect, the need to assess these therapeutic consequences . . . thus emerges as an important objective in any sensible law reform effort.

Bruce J. Winick, Therapeutic Jurisprudence Applied: Essays on Mental Health Law 4 (1997).

[50] Wexler, supra note 48, at 129.

[51] Building a Pedagogy of Problem-Solving, supra note 7, at 120.

[52] Id.

[53] Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol. Pub. Pol’y & L. 193 (1995).

[54] Shattering Negotiation Myths, supra note 3, at 197.

[55] Winick, supra note 12, at 117–18.

[56] Id.

[57] Id. at 118.

[58] See generally Slobogin, supra note 53.  Slobogin contends that

to measure the therapeutic effect of a given rule . . . therapeutic jurisprudence relies on social science theory and research—in particular, mental health and behavioral work . . . . [These disciplines] may frequently be unable to provide [Therapeutic Jurisprudence] with much useful information for two reasons, one which is general in nature and one which is more specific to [Therapeutic Jurisprudence].  First, social science has often proved inadequate to the task of investigating legal assumptions.  Second, even if this general concern can be overcome, the types of empirical questions [Therapeutic Jurisprudence] asks may be particularly difficult to answer.  Consequently, [Therapeutic Jurisprudence] may be confronted with another dilemma: To the extent it grows dependent on social science data it may rest on shaky foundations, but to the extent it does not it loses its allure.

Id. at 204.  There are also additional concerns that reliance on social science data and standards of evaluations may be misapplied: those attempting to apply the research may not be abreast of newly emerging, relevant literature; users of social science may misinterpret the findings or apply them in the wrong context; lawyers and judges may unduly emphasize social science findings to justify their arguments or conclusions; and social science findings may become a superficial, pseudo-authoritative justification used to mask political or value-laden decisions.  Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Ind. L.J. 775, 796 (1997).

[59] Slobogin, supra note 53, at 211–18.

[60] See Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider Views of the Legal Profession, 21 Harv. J.L. & Pub. Pol’y 835, 850 (1998).  In noting the degradation of public opinion toward lawyers, the authors stated that

[p]olls conducted by Louis Harris and Associates, for example, reveal a decline in public perception of the prestige of the legal profession.  For decades, pollsters at the Harris organization have asked random samples of adult Americans to rate the prestige of a variety of occupations.  Each profession is slotted as having “very great prestige,” “considerable prestige,” “some prestige,” or “hardly any prestige at all.”  In 1977, almost 75 percent of respondents believed the legal profession had either very great or considerable prestige . . . .  Twenty years later, public opinion has changed dramatically.  A near majority (47 percent) of respondents to the same question in an April 1997 survey ranked the legal profession as having either some or hardly any prestige at all.

Id.

Originally published to HNLR Online on Jan. 27, 2010.

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Negotiation, not adjudication, resolves most legal conflicts. However, despite the fact that dispute resolution is central to the practice of law and has become a “hot” topic in legal circles, a gap in the literature persists. “Legal negotiation” — negotiation with lawyers in the middle and legal institutions in the background — has escaped systematic analysis.

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