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Toward Another View of Legal Negotiation: The Structure of Problem Solving

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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.

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