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69 A.B.A. J. 1221 (1983)
What about Negotiation as a Specialty

handle is hein.journals/abaj69 and id is 1221 raw text is: What about Negotiation as a Specialty? By Roger Fisher MOST LEGAL problems are not settled through legislative or judicial action but by negotiation. All lawyers negotiate, but few of us have either a conceptual under- standing of the process or particular skill in it. It is time to recognize negotiation as a field for specialization. Litigation is time consuming and ex- pensive. Cases often drag on because lawyers are not particularly good at set- tlement, because they have over-con- vinced themselves of the merits of their client's case, or because taking the in- One lawyer skilled in negotiation would seek settlement while a hard- nosed litigator prepared for trial. The client then would have a choice of which course to pursue. itiative toward settlement seems to communicate a lack of confidence in victory. If some lawyers chose to specialize in negotiation, it would improve both our understanding of the negotiation process and the skills of the best negotiators. Specialization also would permit an hon- est and effective use of a two-track ap- proach-one lawyer, skilled in the proc- ess of making deals, would seek to de- velop a settlement that the client will prefer over the risks and costs of litiga- tion, while a hard-hearted partner pre- pared singlemindedly for trial. I make this proposal not because of doubts about the adversary process, but because of my belief in it. A judge, in order to maximize the chance of a wise decision, hears opposing points of view from different people. When a client has to decide between settlement and litiga- tion, does he or she deserve any less? What's wrong now? Like warfare, litigation should be avoided. Let's candidly admit that from the client's point of view virtually every litigated case is a mistake. Unless one client or both had made a mistake, the case could have been settled and both would have been better off. They might have been able to craft an outcome rcc- onciling their differing interests far better than a court could later. At the worst, they could have saved and divided be- tween them the impressive legal fees that litigators earn. Not only does every litigated case rep resent a waste of the money of one or more clients, litigation diverts their time and energies from more creative pur- suits. Litigation is worse than a zero-sum game in which the winnings of one client added to the losses of the other equal zero. Litigation is a negative-sum game in which, because of lawyers' fees and other costs, no matter who wins the case, both clients-taken together-have lost. Many law firms do not view mounting legal fees as anything evil, and in fact law firms value litigators because of the large billings they bring in. Today it is a widely held view that law firms will not be inter- ested in any idea that reduces legal bills. But any firm that maintains this attitude is likely to price itself out of the market. Increasingly, law firms will be competing September, 1983 9 Volume 69 1221 Illustration by Guy Wolek

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