¶ … Realm of Legal Negotiation DISTRIBUTIVE VS. INTEGRATIVE

Negotiation involves a dialogue of two or more parties or people with the intention to reach a favorable outcome. This favorable result can be for just one party or both parties involved. The integrative approach to negotiation tries to expand the "pie" to make sure everyone gets something. However, the distributive approach ensures one side "wins" and the other, "loses." The legal landscape of practicing lawyers today asks for a further analysis of what is effective and what is not. Meaning, the distributive method greatly outweighs the integrative method in terms of its utilization in lawyer-to-lawyer negotiations because of how it can be used to help one side get what it wants. That is what lawyers do, they try to get the best outcome for their client, not for both parties involved.

Negotiation is a difficult activity to learn and master. ADR or alternative dispute resolution encompasses dispute resolution techniques and processes that offers a means with which disagreeing parties may come to an agreement[footnoteRef:1]. It is a mutual phrase for the ways parties can resolve disputes without or with the aid of a separate third party. While in the past numerous popular parties as well as their advocates resisted ADR, in recent years it has gained pervasive acceptance among the legal profession and the general public. It has gone so far as some courts now requiring some parties to resolve disputes using ADR, before the case it taken to trial (ie. The European Mediation Directive 2008). Business have also taken to ADR to handle mergers and acquisitions to help mediate any post-acquisition disputes. [1: Tracy, Brian. 2013. Negotiation. New York: American Management Association.]

a. Distributive and Integrative Negotiation

What negotiation styles make up ADR? As was previously stated integrative negotiation makes up one part of ADR. Distributive negotiation and mixed model make up the rest. Going by the names of principled negotiation, collaborative problem-solving, and so forth, integrative negotiation is characterized by the open sharing of data so that value may be rationally claimed and generated by the parties. Distributive negotiation or position bargaining, hard bargaining, etc., is characterized by competitive tactics, less information exchange, and distribution of a zero-sum resource. Mixed model uses both with integrative negotiation in the beginning and distributive styles used to divide the recognized resources or benefits.

Distributive negotiation tends to approach negotiation using a model of "haggling" in a market. This means each side frequently adopts an extreme position with the knowledge that the other party will not accept it. Then the part employs a combination of bluffing, brinkmanship, and guile in order to surrender as little as possible before a deal is reached. In a way, it is the process of distributing a perceived fixed amount of value. Distribution negotiation can go one of two ways, either in the hard direction or the soft direction. "A hard distributive approach leads to competition where each actor seeks dominance over the other, whereas a soft approach leads to accommodation where one active gives into the other. Compromise occurs when each actors relinquishes something of value to reach an agreement" [footnoteRef:2]. [2: Yang, Ming, and Fan Yang. 2012. Negotiation in Decentralization. London: Springer. P. 39]

While the history of negotiations runs millennium, it is important to clarify what integrative negotiation is in order to understand why it would not be a beneficial tactic for a lawyer to use. With integrative negotiation, the goalmouths of both parties are not mutually exclusive. That means even if one side accomplishes their objective, the other party is not precluded from accomplishing their own objectives. Both sides then can achieve their objectives. "Integrative bargaining reframes the negotiation as a shared problem to be resolved through pooling knowledge and resources and looking to maximize mutual gain to yield greater payoffs to all parties. This means negotiators must focus on commonalities rather than differences"[footnoteRef:3]. [3: Williams, Robert E, and Paul R Viotti. 2012. Arms Control. Santa Barbara, Calif.: Praeger Security International. P. 129]

These commonalties and differences are all part of a game where people make educated guesses and assumptions on what their opponent will do next. The end-game is to win and win enough for the client to be satisfied. If one has to bluff and gamble in order to scare off the opponent, that is what must be done for the biggest piece possible of the pie. Distributive negotiation means one must haggle to get the best possible 'price' our outcome in order to win and gain the spoils. Games like...

ADR Games
ADR can be a tricky thing to learn. Lawyers sometimes play games while learning and also outside in the workforce. Games of one-upmanship are quite typical with lawyers meeting professionally for the first time. During this "game," lawyers will hand each other their respective business cards indicating which firm they work for and even ask which law school their opponent went to, asking where they finished academically within their graduating classes. This game is all about gaining the psychological advantage by discouraging either person.

That is where the distributive approach becomes useful. The opponent sizes the other opponent up and reveals as little information as possible. This is because similar to board games like Battleship because the less information the opponent has, the less they have to strike with and gain an upper hand. The integrative approach requires sharing information that would make someone not only appear weak and easily to conquer, but also easy to hit because that person is out in the open like an exposed battleship.

Law students do not have to behave like lawyers until they enter the field. That means these kinds of games are not as common. However, in school, law students do have to learn how to approach cases in ways that will gain them the advantage or the upper hand. Just like in a game, the goal is to win. Winning is essential. Case in point are the Ultimatum games.

Class members are divided into pairs and each pair is given $10,000 to divide between themselves. One person is instructed to odder a proposed division of the $10,000 between themselves and the other participant. The offer recipient can either accept the proposed division, giving each the suggest amounts, or reject the offer, leaving both with nothing ... The participants begin to appreciate how much the appearance of fairness affects the interactions[footnoteRef:4] [4: Craver, Charles B. 2012. Effective Legal Negotiation and Settlement. 7th ed. LexisNexis.]

By having players switch sides in each round, students get to see what actions are needed in order to level the playing field and create a fairer outcome. Here distributive bargaining (going for $7,000 while the opponent gets $3,000) becomes disadvantageous because when they switch sides, the person getting the $3,000 thinks it is unfair. Integrative bargaining also becomes disadvantageous because the players will want to get more. In the end it is all about weighing the options and seeing which outcome will be most favorable in the end and which seems the most fair overall. That is great if the real world had tables turn like this. It teaches a student the use of both approaches. However, the real world does not operate like that. In reality, lawyers must try to get the $7,000, because that $7,000 will make their client and their firm happy, leading to a win-win. Win-win situations are part of mathematical models and paradigms.

c. Mathematical Models/Paradigms

People often interpret negotiation using mathematical models or paradigms. Frequently referred to as bargaining, the aim is to predict the cooperation details within certain contexts. For instance, negotiation models can be applied to task allocation, supply chains, electronic commerce, and resource management, to name a few. Such models produce significant results and may give the upper hand to an opponent. A study reveals people often use this kind of approach during competitions, attempting to analyze their opponent with an opponent modeling component. "An analysis of various agents' strategies from past competitions show that most of the used an explicit opponent modeling component"[footnoteRef:5]. [5: Fukuta, Naoki, Takayuki Ito, Minjie Zhang, Katsuhide Fujita, and Valentin Robu. 2016. Recent Advances in Agent-Based Complex Automated Negotiation. Springer. P. 267]

The opponent modeling component part of the growing interest in what is called "automated negotiation" is a way to search for effective strategies to gain advantage in negotiations. While there are common key components in negotiation agents that can therefore transfer to automated negotiation such as bidding strategy, the acceptance and opponent criteria, the negotiating architecture has grown to include in other things that provide a useful foundation for continuous development of agents as well as become a useful analytical tool.

As discussed earlier, distributive negotiating involves revealing as little information as possible to the opponent to gain the upper hand. The other aspect of this involves gaining as much information possible from the opponent in order to keep the upper…