New lawyers are often faced with the need to
negotiate on behalf of others without any previous substantially relevant
negotiation experience. Is there a way
to prepare law students emotionally and knowledgably to face the issues,
objectives and tactics they will meet in practice?
Kirgis (2012) wrote an article entitled Hard Bargaining in the Classroom: Realistic
Simulated Negotiations and Student Values
that discusses his testing in his
law school classroom of his theory that law students should be exposed to
negotiation simulations which challenge their skills and their moral values and
also have consequences upon them before they actually practice law. He theorizes that such students need to be
moved from their comfort zones into virtual real life situations in which they
are required to negotiate issues and objectives, and with tactics with which
they might find discomfort, and to do so with some risk: for example, they are sometimes thrust into
conflicts simulating distributive negotiation problems in which they can obtain
a better grade only if the opposing negotiating student achieves a worse grade.
Among many observations and conclusions, he observes that some students are
willing to suspend their predispositions and aversions to achieve the targets
set for these assignments while others are willing to undergo a low grade in
order to allow another to obtain a higher one. The article is primarily about his
application of his theory and his resultant observations.
Kirgis draws on empirical research of
numerous others in order to provide preconceptions and a framework to his
research and its application. He cites Williams (1983) and Schneider (2002) to
show (page 94) that, while “legal negotiators employ a wide variety of
approaches and behaviours”, “a substantial and even growing number of lawyers
are overtly adversarial. While
most lawyer negotiators appear to be ethical, a small but significant percentage
are perceived by their peers to be unethical.”
Kirgis describes numerous designs of
simulations he has used to assess the behaviour of law students in unfamiliar
negotiation situations. Since his main
intention appears to have been to help these students prepare for real life
rather than use them as guinea pigs, his research seems to want redesign to be
as useful as it might otherwise be. For
example, he has no control groups against which to measure the outcomes obtained
by the participants in his training scenarios, nor does he have tabulated
results from post-training experiences to provide measured effects. Yet, his
work provides very valuable anecdotal evidence for the need to subject law
students to such exercises. As he states (page 94), “Regardless of what we
believe the most effective approach to negotiation is, however, we have a duty
to our students to prepare them for what they will likely encounter in
practice.”
He describes various negotiation simulations
he has used in training law students and a variety of observations he has made
in respect of them. These are not statistical data, but they are valuable
information, and I believe that they provide anecdotal evidence that the
research problem of how to train law students for the emotional conflicts of
real world negotiations is at least partly answered by this style of training.
References
Kirgis, P. F.
(2012). Hard bargaining in the classroom: realistic simulated negotiations and
student values. Negotiation Journal, 28(11),
93-115. Retrieved from Academic OneFile.
Schneider, A.
(2002). Shattering negotiation myths: Empirical evidence on the effectiveness
of
negotiation style. Harvard Negotiation
Law Review, 7: 143–234.
Williams, G. (1983). Legal
negotiation and settlement. St. Paul
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