NCJ Number
120283
Journal
Negotiation Journal Volume: 5 Issue: 3 Dated: (July 1989) Pages: 237-249
Date Published
1989
Length
13 pages
Annotation
There is a serious logical conflict between the precepts of adversarial litigation and alternative methods of problem-solving, negotiation, and mediation.
Abstract
Four conflicting sets of precepts separate good litigators from wise negotiators. First, litigators must use facts in a single, iron-clad way to persuade judges and juries, while negotiators must respect varying and conflicting statements of facts and the values and perceptions of the parties in dispute. Second, litigators must interpret disputes in light of objective and general legal theories, while negotiators emphasize the specific elements of the parties, their relationship, and the dispute as well as their unique characteristics. Negotiators are not bound by rigid rules of law. Third, litigators seek to control the adversarial procedure and the parties in order to shape and capture strategic and tactical opportunities, while negotiators do not seek to control but to be responsive to the exploration of interests, values, and possible solutions. Fourth, litigators must focus exclusively on the interest of their clients and ignore others, while negotiators should minimize partisanship. Negotiators should use their skills to help litigators function effectively as problem-solvers outside of the constraints of the adversarial process. 13 footnotes.