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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
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.
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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