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1 Harv. Negot. L. Rev. 139 (1996)
Lawyers as Negotiators

handle is hein.journals/haneg1 and id is 147 raw text is: Lawyers as Negotiators Gary Mendelsohnt In a typical lawsuit, the same lawyer will not only litigate the case but also attempt to negotiate a settlement. Because most civil lawsuits settle before trial, it is important that litigators negotiate effectively with their counterparts. Unfortunately, this is rarely the case. This Note questions the wisdom of the traditional structure in which a single lawyer assumes the dual role of both litigator and set- tlement negotiator and explores whether these functions ought to be separated. In Part I, this Note discusses factors that decrease the likelihood that a litigator will reach a settlement agreement that maximizes the client's interests. Part II analyzes the benefits and costs of assigning separate attorneys to assume the litigator and negotiator roles. The Note concludes that separating the litigation and negotiation func- tions for specific types of cases often will result in more creative and cost-effective settlements that better serve client needs. I. KEY FACTORS THAT INFLUENCE WHETHER LAWYERS HINDER DISPUTE RESOLUTION The traditional adversary system, in which lawyers both litigate and negotiate, tends to promote stalemate instead of creative dispute resolution. Consciously or not, lawyers may prolong their clients' conflict for financial or reputational reasons. The litigation process itself often results in a deterioration in communication, information distortion, lack of creativity, and reinforcement of psychological bi- ases. All of these factors may delay resolution of the dispute or result in settlements that fail to maximize client interests. A. Financial Incentives Clients can compensate their lawyers through a myriad of finan- cial arrangements, each of which affects the lawyers' motivation to t The author is a consultant in the Pittsburgh office of McKinsey & Co. This Note was originally written to fliffill the author's Third Year Written Work Require- ment at Harvard Law School

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