Rising concern about the adequacy of the adversary system to deal with disputes quickly, fairly, and economically has led to increased interest in a broad range of alternate dispute resolution mechanisms such as arbitration and the use of mini-trials. Presently, however, negotiation between disputants or negotiation between counsel for disputants is the best understood and most often utilized alternative to litigation. In fact, negotiating prior to litigating is so pervasive that it might be thought of as an inherent part of the litigation process. From a lawyer's perspective, an advantage of negotiation over other forms of dispute resolution is that negotiation usually is done by lawyers. Litigators and negotiators are usually the same lawyers, and many lawyers negotiate more than they litigate. But consider the following points: (1) lawyers study litigation as an art and frequently attend courses about litigation; but lawyers seldom study negotiation as an art, and courses about negotiation are relatively rare; (2) litigators operate under sophisticated rules of procedure that prevent abuse and exploitation of one litigator by an-other, stronger litigator, but negotiators operate under primitive and obtuse rules of professional responsibility and under an amorphous set of professional mores common among lawyers.
How can we account for the incongruity of lawyers calling themselves litigators when they actually negotiate for the most part? How can we account for the incongruity of lawyers possessing sophisticated litigation skills learned through concerted effort,although they spend most of their time negotiating with little or no formal training in the art of negotiation? Why was negotiation left at the starting gate, while litigation charged ahead as the most visible, if not the most useful, aspect of a lawyer's professional skill? Surely the skills and art of negotiating are no more difficult to teach and to learn than are the skills and art of trial advocacy.We must look for something other than teachability to account for the fact that litigation skills hold the limelight while negotiation skills are understudied.
Walter W. Steele, Jr.,
Deceptive Negotiating and High-Toned Morality,
39 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol39/iss5/4