5.4 Problem Solving: A Second Approach

As we have seen, dispute resolution theory and negotiation practice teaches that negotiation is not simply a matter of applying an objective economic analysis of case valuation and arriving at an answer.

Furthermore, the adversarial position bargaining strategies used by lawyers can exacerbate feelings of mistrust and competition. Some have argued that position bargaining also fails to produce creative, particularized and lasting solution between the parties.¹¹ They argue that a different strategy for negotiation is needed, one that makes joint problem solvers out of the negotiators in order that the parties will better resolve their dispute.

Let’s look more closely at the psychology of each party in the decision making process to determine how to think differently, and strategically about the case.

Cognitive psychologists, especially the behavioralists, caution that even professional decision makers are not as rational as one might expect (especially as defined by optimal efficiency principles).¹² The parties might value their cases differently because one is more naïve and intuitive, or is susceptible to error or ideological bias. Or, one side’s client or lawyer is just simply not very skilled at case valuation or counseling.

Professor Lagevoort, a social scientist who researches and analyzes disputes, describes cognitive psychological literature on decision making biases and advises lawyers to take interest in behavioral psychology as it affects decision making and may inhibit optimal conflict resolution.¹³ This literature suggests that non rational biases come in seven forms.

Both lawyers and clients are affected by these biases.

Lawyers who take a solely economic valuation view of negotiation—discovering expected values at trial, in the light of traditional court decisions—may run into two types of reactions from their opponents: their theory of negotiation ignores the social psychology inherent in dispute resolution, and can’t account for the fact that courts, most often, are stuck with a win lose decision, while the parties themselves are not. In court, one party wins and one loses. A court is seldom able to customize a particularized solution to the parities’ problem. Those solutions are left to the parties both before and after the court reaches its decision, and it is very difficult for a litigator not to think in win lose, “zero sum game” terms.

In addition, the negotiation process itself is fraught with additional psychological forces. Consider what we know from game theory.¹⁴ Not only does competition produce its own psychological effect, but so do needs for respect, living up to expectations of others, feelings of powerlessness, embarrassment or face saving, isolation, views of sunk costs and opportunity costs, and multicultural, gender, and ethnic differences effect results in ways that make negotiation outcomes appear irrational. We would like to think that a professional experienced bargainer can factor out biases and psychological and social differences. The problem is that a lawyer is not immune to these same forces. In fact, watching pairs of lawyers negotiate in simulation settings, where one might expect less emotion, and less deadlock, what we have learned is that one of the major forces against reaching settlement, even where client authority overlaps and position bargaining ought to produce settlement, often the bargainers biases (for higher fees, even though purely hypothetical in the simulation) egos and anger block settlement.