By Robert H. Mnookin
Summary written by Conflict Research Consortium Staff
Citation: Robert H. Mnookin, Scott R. Peppet and Andrew S. Tulumello. Beyond Winning. The Belknap Press of Harvard University, Cambridge MA 2000.
In this step-by-step guide to conflict resolution, the authors describe the many obstacles that can derail a legal negotiation, both behind the bargaining table with one's own client and across the table with the other side. They offer clear, candid advice about ways lawyers can search for beneficial trades, enlarge the scope of interests, improve communication, minimize transaction costs, and leave both sides better off than before.
This book makes the case that a problem-solving approach to negotiation offers the most promising means of creating value. The book's goal is to help lawyers and their clients work together and negotiate deals and disputes more effectively.
The book is divided into four parts: "The Dynamics of Negotiation", "Why Lawyers?", "A Problem-Solving Approach", and "Special Issues". The three chapters of Part I each outline a tension inherent in the negotiating process. Chapter One covers how to "create value" so that each party feels that the outcome of their agreement benefits them more than no agreement at all. Negotiating styles and the need to balance empathy and aggression are discussed in Chapter Two, and Chapter Three focuses on the pros and cons of negotiating through an agent.
The second section lays out reasons for involving lawyers despite the obvious monetary costs. Chapters Four and Five cover the difficulties of dispute resolution and deal-making, respectively. Both chapters define what legal disputes and deal-making are, and the lawyer's role in each process. The last chapter of the section details the psychological and cultural challenges that can complicate the lawyer's task. The heart of the book is in Part III where the authors lay out how to negotiate with "a problem-solving approach". The section first covers how to establish a client-centered, collaborative relationship that supports informed choices on the part of the client and autonomy for client and lawyer. Next the authors broadly outline how to establish a relationship with the opposing side that permits "value creation" and protect the client from exploitation. The section wraps up with two chapters giving more specific advice on resolving disputes and making deals.
Finally, the last section has a chapter on professional ethics and a chapter on negotiations involving organizations and multiple parties. These chapters explore ways in which attorneys are both aided and constrained by being members of a profession, a law firm, or a local legal community.