The Lawyer's Dilemma: To Be or Not to Be a Problem-Solving Negotiator

Abstract

Clinical legal education has not paid sufficient attention to developments in the theoretical understanding of negotiation. A growing body of scholarship on legal negotiation endorses a problem-solving approach to negotiation, an approach based on the premise that negotiated solutions to problems create value for all the parties. Leading texts for clinical courses advise students to learn both the problem-solving approach and the adversarial approach. The adversarial approach is based on the premise that negotiation is a process of dividing limited resources in which one party gains and one party loses. Deciding which approach is consistent with the duties and values of the legal profession is a dilemma that lawyers must resolve. In this article, Professor Hurder reviews the origins of both the client-centered approach to lawyering and the problem-solving approach to legal negotiation and finds that the two approaches have much in common. He urges clinical legal education to prepare and encourage lawyers to be problem-solving negotiators