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December 7, 2010

Negotiation as the Connective Skill

As many schools consider further developing the skills component of their programs, I'd like to make a pitch for putting a thorough, required negotiation class at the center of that development.

First, the balance between negotiation and trial practice training at many schools is all out of proportion to what the real world requires.  My own field of criminal law is the most trial-intensive of practice areas, yet even there 95% of cases plead out.  That means that negotiation is the most important skill in 19 out of 20 cases.  Litigators certainly must know how to litigate-- but they must know how to negotiate, too.

Second, and relatedly, negotiation is a skill crucial to all practice areas.  It is essential to work in big firms and solo practice, legal aid and family law.  It is, along with legal writing, the skill that is perhaps most commonly needed across the lines of legal practice.

Third, negotiation is a learned skill.  A few simple techniques can transform a practice.  For example, social science tells us that making a first offer confers huge advantages.  Yet, it is traditional in criminal law for the government to always make the first offer.  A defense attorney who upsets this convention at well-chosen times may get disproportionate benefits for her client.

Fourth, the ethical issues that arise in negotiation require more intense study than we typically give them in PR class.  Again, looking at my own field, the ethical requirement that all plea offers be made clear to the defendant is embedded in the negotiation process, and to fully understand those principles the process must be revealed.

Finally, negotiation offers great opportunities for inter-disciplinary collaboration.  The social sciences (including business administration) are far ahead of us in using science to analyze techniques and outcome in negotiation, and we need to lean on and borrow from them.

-- Mark Osler

December 7, 2010 | Permalink


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Mark - you are absolutely correct and it is amazing how little attention is paid to this. Partly, I think, because even though it is a "skill" it does not fit as clearly in the skill set of many "skills" teachers.

Here is a link to a presentation I gave at the Emory Transactional Law conference on this subject.


I would guess the need to teach it in small sections may also contribute (which is why I suggested a model that could be taught using adjuncts supervised by a full-time faculty member.

I would add a few points to the ones you made:

The course demonstrates to students both the cooperative and competitive modes of operating as an attorney. Cooperation is not natural for many of our students; seeing how it can be effective is an important lesson.

The course focuses more directly on systematic decision-making than other courses.

The course focuses the student more clearly on how others react to what they say than other courses (granted, trial ad and moot court do this to an extent).

The basic argument comes down to this - some lawyers litigate; all lawyers (and all people) negotiate.

Posted by: Howard Katz | Dec 26, 2010 7:11:28 PM

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