Let's Make a Deal: Understanding the Negotiation Process in Ordinary Litigation

In ordinary civil cases attorney negotiations over settle- ment typically involve little contact between lawyers, no or few exchanges of offers and counteroffers, and focus almost exclu- sively on money. How do these findings, drawn from data collect- ed by the Civil Litigation Research Project (CLRP), relate to the extensive commentary and theory about negotiation? What new models of negotiation are necessary to account for this pattern? By expanding the empirical evidence about how negotiations actually occur and by challenging theoretical models of negotia- tion with these data, LET'S MAKE A DEAL contributes modestly but importantly to the literature on negotiation. The book begins by introducing several models of negotiation and describing the CLRP data upon which the book is based. Those data were gathered through interviews with 1382 lawyers who had been involved in a sample of 1649 state and federal civil cases terminated in 1978. The twenty-six page second chapter reports all of the data on negotiation. The remainder of the book reviews and analyzes negotiation theory and examines its applica- tion to these data and to published data from other studies of plea bargaining and civil case settlement. Chapter 3 looks at the calculus of positions, zones of overlap, transaction costs and outcomes in negotiations and raises questions about the adequacy of models based on exchange of information about posi- tions. In Chapter 4 Kritzer examines game theories of negotia- tion and finds them wanting in their application to the realities of ordinary civil litigation. The direct economic stake that lawyers may have in the outcome of negotiation or litigation provides the focus for analysis in Chapter 5. Chapter 6 attempts to draw the pieces together by arguing for a distinction between strategic negotiation where maximal results are the focus and negotiation parallel to that in plea bargaining where the focus is, in Pamela Utz' words, "settling the facts." According to Kritzer, "Here the goal of the negotia- tor is geared not toward achieving the BEST outcome possible but toward achieving an APPROPRIATE outcome by arriving at some consensus with the opposing party concerning the parameters of the case" (p. 120). In addition, Kritzer concludes that pro forma negotiations also occur, those "where likely ... transac- tion costs are very high relative to probable return, [and where] there may be little concern about either maximal or appropriate results in individual cases" (p.125). A major frustration for both the author and the reader is the very limited character of the new data about negotiation that are available from the CLRP study. Repeatedly, Kritzer must acknowledge that empirical tests of hypotheses arising from the review of negotiation theory "would require substantially greater detail about specific negotiations than I have available..." (p. 127). Not only are the data limited in detail, but their validi- ty is at times suspect as well. Gathered in interviews two years after the conclusion of the negotiations in question, Page 123 follows: some responses appear to have been shaped by selective recall. As Kritzer observes at one point, "Clearly the respondents presented themselves as being more reasonable than their oppo- nents were" (pp.50-1). These issues of valididty raise questions about how seriously to take the answers to questions about what was at stake in negotiations as well as about the level of offers and demands made. Measures of "success" in negotiation based on these answers suffer accordingly. These problems in turn throw doubt on conclusions based on these data, particularly the strong assertion that "for those who do engage in [tactical]... bargain- ing, there is a clear payoff; they achieve better results than those who make demands or offers at or near the amount at stake" (p.55). A central issue for Kritzer is whether lawyers engage in tactical bargaining (making offers or demands substantially different from estimated stakes) or more cooperative bargaining where offers or demands are close to stakes. The focus on this important tactical question comes at the price of examination of substantive disagreements over what the stakes in the case actually were, that is over what kind of case it was. One would expect, for example, far greater negotiation intensity, the greater the disagreement. However, in part because there are few cases in which lawyers for both sides were interviewed, data to examine differences in case assessment appear to be unavailable. It may also be that for the responding lawyers the arguments over the substance of the case, 'settling the facts,' were not con- ceived of as negotiation when answering the questions in the survey. The absence of data on this issue in the book also means, unfortunately, an absence of analysis regarding its significance in negotiation. One of the intriguing questions left unanswered by Kritzer's analysis is how the negotiation process relates to the litigation process. Which legal deadlines in a case force the offer and brief settlement discussions? Why does it often take a year or more for these cases to settle when so little is involved in the negotiation? How much information gathering is necessary, and how much takes place through formal and informal discovery? Despite clear recognition that "litigotiation" rather than negotiation is the process under study, too little attention is paid to how negotiation styles and strategies may be shaped by the litigation context. The disconnection between negotiation and litigation helps lead Kritzer astray on occasion. For example, he argues that appropriate result, consensus oriented negotiation resembles the problem-solving negotiation advocated by Menkel-Meadow. Yet, it would appear that appropriateness of result is decided in refer- ence to likely legal outcomes -- not the wider range of standards or interests that Menkel Meadow advocates -- and occurs in the course of continuing adversariness through the litigation process -- as compared to a rather different problem-solving style. In his conclusion, Kritzer challenges advocates of alterna- tive dispute resolution to consider the impact of their proposals on routine litigation and negotiation. If one takes his analysis as an assessment of some of the "problems" of ordinary negotia- tion, then Kritzer's book also suggests some standards for evaluation of ADR efforts that have impact on routine cases (as opposed to summary jury trials or mini-trials, for example, which are directed at unusual cases). Does ADR promise to diminish the number of settlements for the "wrong Page 124 follows: reasons" (eg. lawyer self-interest), speed routine settlements, reduce (or at least not increase) the transaction costs, and make it more likely that non-monetary considerations to play an appropriate role in settlement discussions? This book adds a small piece to our understanding of what the vast bulk of negotiations between lawyers actually look like. Its more substantial contribution comes from the use of this empirical evidence -- along with other evidence from studies of plea bargaining and civil case settlement -- to challenge and rethink theories and models of negotiation. Because Kritzer effectively involves the reader in that analysis and rethinking, one should come away from the book stimulated by it even if frustrated by the limitations of the data and disagreeing on occasion with his conclusions.


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