Just negotiation.

AuthorHollander-Blumoff, Rebecca
PositionRole of procedural justice

TABLE OF CONTENTS INTRODUCTION I. THE PSYCHOLOGY OF PROCEDURAL JUSTICE II. THE LANDSCAPE OF LEGAL NEGOTIATION A. The Role of Process in Prior Negotiation Scholarship 1. Bargaining in the Shadow of the Law 2. Principled and Problem-Solving Negotiation 3. The Economic Approach to Negotiation 4. Suggestions About an Independent Role for Procedural Fairness B. Rules of Legal Negotiation 1. Rules About Bad Conduct 2. Court Rules About Settlement III. NEGOTIATION AND PROCEDURAL JUSTICE A. Is Procedural Justice Relevant to Negotiation? B. Empirical Research on Legal Negotiation 1. Negotiation and Procedural Preferences 2. Effects of Procedural Justice in Negotiation 3. Procedural Justice Antecedents in Negotiation IV. THE PROCEDURAL JUSTICE GAP BETWEEN ATTORNEY AND CLIENT IN NEGOTIATION A. Will Lawyers Experience Procedural Justice Differently than Clients? B. The Ethics of Procedural Justice in an Agency Relationship CONCLUSION INTRODUCTION

Negotiation is in many ways the poor stepchild of our civil dispute resolution system. Litigation carries with it all the pomp and circumstance of an impressive courthouse, robed judges, and, most importantly, substantive and procedural due process. (1) Arbitration, too, has procedural safeguards that will land the parties back in a courtroom if the process goes too far astray. (2) Even mediators vouchsafe a fair and unbiased process for participants. (3)

In contrast, negotiation is the back-room, realpolitik, down-and-dirty way that most cases get resolved. Although it has been well documented that most of the cases with a legal basis for resolution (4) are resolved through negotiation, (5) there are few rules for lawyers' conduct during the negotiation process. Procedural and substantive legal rules for disputants engaged in negotiation are few and far between. (6) It is "just negotiation"--merely a process where disputants work out a resolution in any way they both might choose--and the only way to evaluate how well a negotiation has succeeded is to consider the favorability, or perhaps the fairness, of the outcome that the negotiation has produced.

Or is it? A body of research, particularly in social psychology, has shown how deeply individuals care about the fairness of the processes that produce decisions of importance to them, and has identified distinct factors that lead individuals reliably to assess processes as fair or unfair. Over three decades ago, Thibaut and Walker's groundbreaking work on the role of "procedural justice" (7) showed that the fairness of a process, distinct from the fairness or the favorability of the outcome, is an important factor in how individuals make assessments about decisions that affect them. over time, procedural justice research has shown that the fairness of process also has important implications for individuals' satisfaction with outcomes and for individuals' assessments about the legitimacy of decisions and institutions.

Although procedural justice research has typically focused on the importance of fairness of process to participants who receive a decision from a third party on a matter that is meaningful to them, newer empirical research has suggested that procedural justice effects may also be present in bilateral negotiation. This research suggests factors that lead to assessments of fair treatment in negotiation and indicates that the fairness of the negotiation process may have significant effects on parties' acceptance of and adherence to their negotiated agreements. Thirty years ago, Mnookin and Kornhauser suggested that substantive legal rules and endowments played an important role in negotiation, so that people were "bargaining in the shadow of the law." (8) But individuals understand the court system to include not just the substantive legal endowments that Mnookin and Kornhauser described, but also the procedural protections that ensure a fair process. In this Article, I suggest that individuals are bargaining in the shadow of this fair process--in the shadow, in essence, of due process--with the fairness of the process playing a critical role in individuals' experiences in legal dispute resolution negotiation. (9)

Negotiation is not just a vast wilderness vaguely related to our legal system; it is inextricably tied to our dispute resolution apparatus at every stage and every level. Because legal negotiation and settlement of disputes form such a large proportion of the disposition of legal cases, the way that disputants view negotiation is meaningful to their perspective on the legal system as a whole. Psychology research has shown that assessments of procedural fairness are reliably related to perceptions of legitimacy. (10) Because most cases are resolved by negotiation, the procedural fairness of those negotiations may have a significant impact on citizens' perceptions of the legitimacy of the legal system, writ large. I posit here that "just negotiation," that is, negotiation that is conducted in a fair manner, has an important effect on how disputants perceive negotiated outcomes and thus our legal system more broadly.

Considering procedural justice in the negotiation context raises several critical questions. The first two questions are interrelated. one, can "procedural justice," or fairness of process, reasonably be said to exist at all in the context of a dynamic two-party process in which no one can set rules and no one can impose a decision on the participants? In a context where both parties have the potential to contribute equally to the negotiation process and both parties must agree to any negotiated outcome, there is an open question as to the relevance of the concept of procedural justice at all. What does fairness of process even mean in negotiation? When is behavior fair, and when is it not? secondly, then, we must ask what factors reliably guide negotiators' subjective assessments of whether they have been treated fairly.

Another distinct concern raised by considering the role of procedural justice in negotiation is that the participants in legal negotiation are typically lawyers, rather than clients. Yet procedural justice literature has largely explored the effects of fair process on the principals who receive a decision on a matter of importance to them. In the negotiation context, those principals are clients, who are not often present during the actual negotiation process. The lawyer-client principal-agent relationship considerably complicates, beyond the bounds of existing procedural justice literature, an understanding of the role that procedural justice does, might, and should play in bilateral legal negotiation. Two immediate questions stem from the presence of the principal-agent relationship in this context: first, whether lawyers are likely to experience procedural justice in a negotiation process in the same way that a client would; and second, how potential differences in the experience of fairness of process between attorneys and clients may unfold with respect to the ethics of representation and zealous advocacy.

In Part I of this Article, I provide background on psychological research on procedural justice. In Part II, I sketch the landscape of prior work on legal negotiation, highlighting the emphasis on outcomes and the absence of a focus on the fairness of process. I also provide a brief background on the handful of explicit rules that do exist for the regulation of the negotiation process, showing that negotiation's reputation for being a lawyer's "Wild West" is supported by the very slender set of rules that governs participants. In Part Ill, I explore the intersection of procedural justice and negotiation more fully, first addressing theoretical concerns that the absence of a third-party authority in negotiation may make an exploration of procedural justice inapposite and then discussing the small but growing body of empirical research on the psychology of procedural justice in negotiation. In this section, I demonstrate that the connection between procedural justice and negotiation is both theoretically and empirically sound. In Part IV, I raise and explore specific concerns about the intersection between procedural justice and negotiation in light of the attorney-client relationship present in the legal negotiation setting.

  1. THE PSYCHOLOGY OF PROCEDURAL JUSTICE

    In 1975, Thibaut and Walker published their seminal book, Procedural Justice: A Psychological Analysis, in which they set forth the results of multiple studies showing that individuals were more satisfied with dispute resolution mechanisms when they perceived that the process of dispute resolution was fair, irrespective of the fairness of the outcome or the favorability of the outcome. (11) This was a remarkable finding, but one that may not have surprised the original crafters of our justice system, concerned as they were with designing a system that afforded due process to its participants. (12) What Thibaut and Walker did that was so revolutionary was to test, quantify, and clarify the great civic intuition of our legal system: that fairness of process matters to people and drives their assessments of dispute resolution processes separate and apart from the impact of how substantively fair, just, or good an outcome may be. (13) Thibaut and Walker found that individuals preferred adversarial over inquisitorial legal systems (14) and also preferred to retain a large share of control of the process even when another party had control over the ultimate decision. (15)

    In the thirty years since Thibaut and Walker began their empirical exploration of the effects of procedural justice, (16) the field has grown substantially. studies have explored the scope of procedural justice effects across different settings, demographic groups, and cultures; (17) the underlying mechanisms that produce the effects; (18) and the impact of these effects on the perceived legitimacy of authority structures. (19) Throughout...

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