How lawyers negotiate

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Negotiation literature identifies three principal theories of negotiation confusingly complicated by the wide variety of names that have been applied to them. The distributive theory (also called value-claiming, competitive, adversarial and hard bargaining) regards all gains as made at the other party’s expense. The cooperative theory (also known as coordinative and soft bargaining) regards concessions as a way to capitalize on the opponent’s desire for a fair outcome. The integrative theory (also known as value-creating, problem-solving, win-win and principled negotiation) involves joint attempts to reconcile the parties’ interests so as to benefit both. Despite the vast amount of literature on negotiation theory, none of these theories is lawyer-specific. Only Williams and Schneider have (separately) undertaken empirical research in an attempt to demonstrate how lawyers negotiate, as perceived by other lawyers (peer review). Their research found that in 60% of the cases they surveyed, US lawyers perceived other US lawyers as behaving consistently with cooperative negotiation theory. These studies do not permit conclusions to be drawn as to how a different cohort, namely clients and other non-lawyers, evaluate their experiences with lawyers in negotiation because the perceptions of clients may differ from the perceptions of lawyers. This review of the literature and the demonstrated lack of relevant data confirm the important contribution that can be made to our understanding of how lawyers negotiate by collecting valid, independent, objective data to identify the role of negotiation in lawyers’ work, the experiences of clients and other non-lawyers engaged in negotiation with lawyers and their levels of satisfaction or dissatisfaction with the process and its outcomes. The original research conducted for this thesis therefore studied how those with whom and for whom lawyers negotiate evaluate lawyers in negotiation. The results indicate that clients and other non-lawyers perceive NSW lawyers’ negotiation behaviour as more consistent with the competitive theory of negotiation than with other theories. The behavioural profiles of lawyers, ascertained through MBTI and DISC analysis, were compared with those of the general population, showing that lawyers have a distinct behavioural profile which may be used to explain how their behaviour is likely to be perceived by others. In apparent contradiction of the findings of Williams and Schneider, the MBTI research revealed a competitive, task focused pattern of behaviour inconsistent with building effective working relationships. Focus groups comprising clients, staff and lawyers in management and general counsel roles were asked to identify the characteristics of lawyers in negotiation. The results were consistent with the MBTI and DISC research results and enabled ten characteristics of lawyers in negotiation to be identified. These focus group outcomes showed lawyers to be committed to achieving good outcomes for their clients but to be engaged in a range of behaviour which their non-lawyer constituency perceived as impeding good outcomes. A study of the training regime for student lawyers indicates that undergraduate training regimes are inadequate and do not provide law students with opportunities to develop an understanding of negotiation theory and practice and to enhance their skills. It is concluded that lawyers and clients may have different perceptions of lawyers’ negotiation behaviour; that there is no clear relationship between negotiation theory and how lawyers negotiate; and that experience of the cohort with and for whom lawyers negotiate may be more readily explained by behavioural theory than by negotiation theory.
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