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Over more than two decades as a neutral, I've seen a shift in young lawyers' attitudes. Most of my cases have involved continuing relationships, coupled with politics on both sides. When I started, it seemed that freshly minted lawyers generally required a period of retraining before many of them would grasp that the attitudes they brought to a mediation, arbitration hearing or administrative law proceeding today could have adverse consequences for their client's dealings with the same opposing party tomorrow. It's been mostly heartening to see the evolution of dispute resolution training, with its stress on the maintenance and development of relationships.

Yet the dominant mode of this training may have overshot the mark. I think there are two kinds of gaps (though they overlap) between what is being taught and what is needed in practice. They might be distinguished as "substantive" and "moral" gaps.

The substantive gaps occur when a regular element in typical negotiation is omitted from or given little attention in training. Two varieties that seem common are numerical elements of offers in general and distributive aspects in particular, and the handling of disputes that have a strongly political element (which I'd define as "any dispute in which it is in the interest of someone at the table that the case fail." This is not confined to labor and public policy disputes; political behavior is pretty common in the corporate world, and thus likely to enter into lots of disputes your graduates handle.) To the extent that negotiation training is argued as necessary because it reflects the real world of how most cases are resolved, such omissions are oddly short-sighted.

But I'd distinguish the simple fact of these omissions from the larger problem, which I'm calling a "moral" gap in quotation marks, because it seems useful to reflect on why merely incorporating material on numbers and distributive bargaining might not be enough. I agree with Dwight Golann's assertion in his prefatory notes for this session, to the effect that most people who are teaching negotiation and conflict resolution in law schools show a distinct preference for the construction or reconstruction of long-term relationships. Whether this reflects a moral stance or a political position, though, it means that efforts to incorporate distributive elements may be half-hearted, without some accompanying "rethink" of the larger strategy of teaching negotiation.

For example, I've seen a highly capable teacher design an intriguing, richly complex and otherwise well-crafted exercise, in which the students, assigned as parties and attorneys, encountered mediators who were essentially at sea - because the case clearly involved large amounts of dollars and possible reorganization of a complicated public facility, while most of the budget, staff size and distribution, and other numerical data to support any offer were simply missing from the working materials. I know from other encounters that this teacher is highly capable of dealing in numbers. So the gap is not one of talent, but of intent: the teacher wanted the students to think in terms of relationships. But to that end, he had (apparently unconsciously) suppressed the dollar and other numerical elements any set of normal parties would have known.

Anecdotally, this seems common. Giving dollars and other numbers their due, however, should make it possible to demonstrate how an excessive focus on these elements can lead to settlement, but on terms that won't work well in the long run. I'd argue for at least some teaching exercises being designed such that different teams will achieve some settlements which focus on the short-term and others focusing on the long-term. (I worked up one like this once, so I know it can be done. Unfortunately that one takes at least two hours to play out.)

Used conscientiously, this approach would provide an opportunity to discuss the pluses and minuses of typical handling of real live negotiations more openly. Not to give "space" to negotiation elements that are so prevalent after law school, meanwhile, practically invites the senior attorneys in a firm to undercut this training, by explaining condescendingly to a newly hired lawyer that "what you learned in school is all right for school, but you're in the real world now." I submit it would be better practice to provide the recently graduated student with a ready riposte.