Law Commons^™

A Framework For Advancing Negotiation Theory: Implications From A Study Of How Lawyers Reach Agreement In Pretrial Litigation, John M. Lande

Faculty Publications

The prevailing negotiation theory tries to fit lots of square pegs into just two round holes–adversarial or cooperative bargaining. In the real world, negotiation comes in many different shapes, not just circles and squares. Analyzing law school textbook definitions of the traditional models, this article demonstrates that the two “round holes” in current negotiation theory are poorly defined. It also presents empirical accounts of actual pretrial negotiations to demonstrate that the theoretical models do not fit some real-life negotiations. It argues that it is time to replace the traditional models with a flexible framework that can accommodate virtually all legal …