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Toward Another View of Legal Negotiation: The Structure of Problem Solving
Abstract
This article outlines a systematic approach to legal negotiation premised on the notion that agreements will be more effective when the parties conceive of their purposes as solving the problem or planning the transaction, rather than winning or gaining unilateral advantage. The creative problem-solving approach depends on two structural components: (1) identifying the parties’ underlying needs and objectives; and (2) crafting solutions, first by attempting to meet those needs directly, and second, by attempting to meet more of those needs through expanding the resources available. By utilizing such a framework for negotiations, the parties should recognize the synergistic advantage of such an approach over the adversarial and manipulative strategies of zero-sum negotiations. Parties should be able to achieve solutions to disputes that would not have been possible in court-ordered resolutions. Ultimately, by viewing legal negotiation as an opportunity to solve both the individual needs and problems of their clients, and the broader social needs and problems of the legal system, negotiators have an opportunity to transform an intimidating, mystifying process into one which will better serve the needs of those who require it.
Universities face a dilemma in determining how to create fair, consistent, and reliable processes that respect the rights of both alleged perpetrators and victims and encourage people to bring complaints forward. Using the literature on non‐law forms of ordering and neo‐institutional theory, this article examines university Ombuds and Title IX Coordinators and their handling of sexual misconduct disputes. Primary data collection included a review of 1200 documents and interviews with 14 Ombuds and 13 Title IX Coordinators from 22 large institutions of higher education between 2011 and 2014. This study concludes that Ombuds and Title IX Coordinators, despite being designed in sharply contrasting ways, converge (but not fully) toward a hybrid of formality and informality. This paper examines Title IX to understand what drives convergence behavior and to analyze how the recent changes in the law may alter the process of convergence. As Title IX law continues to develop, the theory of procedural convergence has important implications for the creation of non‐law dispute mechanisms and the balance between individual rights and the organizational development of legal norms.
The notion of employment as a relational contract has received much academic attention and is gradually being recognised by common law courts in judicial decision-making. This article focuses on a primary question: what impact, if any, could that relational classification have on the remedies available where an employment contract is breached? Given that this question has not yet been considered judicially, and only mentioned in passing in academic writing, this article seeks to probe the question by traversing existing judicial and academic understandings of employment contracts as relational in nature. It then considers the potential impact that the relational classification may have on the remedies available to employees whose employment contracts have been wrongfully terminated by their employer. Three options are put forward in respect of the potential impact on the remedy available for breach, each of which is underpinned by a combined theoretical and doctrinal analysis. First, it is suggested that awards for specific performance may become more prevalent. Secondly, there may be a place for a special category of relational damages. Finally, it is acknowledged that the relational classification may end up having no impact on the available remedy at all.
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