Negotiation and psychoanalysis: If i'd wanted to learn about feelings, i wouldn't have gone to law school

Journal of Legal Education

Volumn 46, Issue 3, 1996, Pages 420-428

  Nelken, Melissa L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 21444440170     PISSN: 00222208     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (28)

1. Gerald R. Williams used similar observations as the starting point for a taxonomy of legal negotiation based on negotiator "styles" (cooperative or competitive) and effectiveness (rating them as effective, average, or ineffective). Legal Negotiation and Settlement (St. Paul, 1983).
2. In the last fifteen years the study of legal negotiations has burgeoned. Many writers have explored and attempted to explain differences in negotiation results in terms of lawyers' negotiation styles ("competitive" or "cooperative") and strategies ("adversarial" or "problemsolving"). See, e.g., id.; Gary T. Lowenthal, A General Theory of Negotiation Process, Strategy and Behavior, 31 U. Kan. L. Rev. 69 (1982);
3. Carrie Menkel-Meadow, Legal Negotiation: A Study of Strategies in Search of a Theory, 1983 Am. B. Found. Res. J. 905;
4. Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem Solving, 31 UCLA L. Rev. 754 (1984);
5. Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating (Boston, 1990). For a comprehensive text on general negotiation
6. See Roy J. Lewicki et al., Negotiation, 2d ed. (Burr Ridge, I11., 1994).
7. Bastress and Harbaugh, supra note 2, provide an extensive discussion of various "helping theories," including psychoanalysis, at the beginning of their book. Their primary focus, however, is on the application of these theories to the counseling role of lawyers, not to negotiations. And with the exception of a brief discussion of the lawyer's possible countertransference reactions in the lawyer-client relationship, their exposition of helping theories, including psychoanalysis, is geared toward helping the lawyer understand her client better.. My focus is on using psychoanalytic ideas to help lawyers understand themselves better.
8. Sigmund Freud, New Introductory Lectures on Psychoanalysis, trans. James Strachey (London, 1964) (1933) and
9. Charles Brenner, An Elementary Textbook of Psychoanalysis, rev. ed. (Garden City, 1974) are two of the best-known introductory works on the subject.
10. See also Andrew S. Watson, Psychiatry for Lawyers (NewYork, 1968) for a psychoanalytically informed approach to psychiatry and law.
11. Such transferences are ubiquitous in human relationships. They create significant problems only when they interfere with accurate, reality-based assessment of the other person-whether it's dealing with a client as if she were your big sister or assuming that the smiling gray-haired man on the other side of the negotiating table is like your grandfather.
12. Even at my school, where there are as many as eight courses in negotiation taught during an academic year, the small class size means that only about a quarter of our students have any systematic introduction to the topic while in law school.
13. My own introduction to the application of psychoanalytic ideas to law came at the University of Michigan in the early 1970s, where Andrew Watson, a psychoanalyst who was professor of both psychiatry and law, cotaught the negotiation class at the law school. I was not in the class; but the approach intrigued me, and I came back to it when I began teaching interviewing and counseling as part of Michigan's clinical law faculty in 1979.
14. The studies cited in note 2 supra have been tremendously useful in helping us organize our thinking about the complex process of negotiation. But conscious understanding of the pros and cons of adopting a competitive versus a cooperative style, or an adversarial versus a problem-solving negotiation strategy, takes us only so far. Without some appreciation for what motivates the inclination to choose one style or strategy rather than another, it is difficult for negotiators to change their negotiation behavior in the heat of conflict. It is here that I think psychoanalytic theory has the most to offer the study of negotiation.
15. Certainly there is little in the standard law curriculum to dissuade anyone from the view that the practice of law, like the study of it, is a purely rational enterprise. For a discussion of how the unspoken needs and wishes of both lawyer and client shape their interaction and the outcome of their work together, see William L. F. Felstiner & Austin Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions, 77 Cornell L. Rev. 1447 (1992).
16. This and all quotations that follow come from journals kept by my negotiation students during the course of the semester.
17. Client control is a big issue for many lawyers, who already feel vulnerable enough in their professional roles to the vagaries of opposing counsel andjudges. See Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York, 1974);
18. Felstiner & Sarat, supra note 9.
19. The childhood version of this is captured by a friend's description of her younger sister's way of justifying aggression to their parents: "Sally hit me, so I hit her first."
20. Many questions go unasked in negotiations because of fear of what the answer will be, as if you could get rid of something by closing your eyes to it. What is seldom realized is that the feared answer then assumes the power of truth and governs the negotiation, whether or not it is based in reality.
21. Sometimes the most useful lessons along this line come from an increased awareness of the ways in which one's own comments arc subject to misinterpretation, leading to increased efforts to communicate clearly.
22. Like Molière's bourgeois gentilhomme, who was astonished to learn that he had been speaking prose all his life, people often find the very fact that we negotiate all the time to be a useful insight, because it means that there is an almost endless supply of negotiation experiences to learn from, from the mundane to the momentous.
23. A common result on an instrument like the Thomas-Kilmann Conflict Mode Instrument is that those who score high in competitiveness, when responding in terms of their professional behavior in a conflict situation, rate themselves as highly accommodating in situations of personal conflict.
24. One of the drawbacks to a consistently adversarial negotiation strategy is that it is inefficient in so many situations. See Leonard Greenhalgh, The Case Against Winning in Negotiations, 3 Negotiation J. 167 (1987);
25. Menkel-Meadow, supra note 2 (both articles);
26. Roger Fisher & William Ury, Getting to Yes (Boston, 1981). There are some true one-shotdeals, however, such as many personal injury cases; and in these situations, an adversarial strategy can be highly effective, whether combined with a competitive or a cooperative negotiation style.
27. Despite the professional ideal, Williams found that only 24 percent of the lawyers he studied actually took a competitive approach to negotiation, while 65 percent had a cooperative approach. He also found that only 25 percent of the competitive lawyers were rated as effective, while 59 percent of the cooperative ones were, an indication that clients arc not necessarily well served by the carryover of the adversary model to the negotiation table.
28. Leonard Greenhalgh and Roderick W. Gilkey, in a study of male and female negotiators, found that those with a masculine sex role orientation (as distinct from their biological sex) were more likely to have an "episodic orientation" to negotiations, viewing them as a one-shot deal like a sports contest, while those with a feminine sex role orientation tended to have a "continuous orientation," seeing negotiations as part of an ongoing relationship and avoiding tactics that might disrupt the relationship. Our Game, Your Rules: Developing Effective Negotiating Approaches, in Not as Far as You Think: The Realities of Working Women, ed. Lynda Moore, 135 (Lexington, Mass., 1986).