Publication Title

Washington University Journal of Law & Policy


Imagine the following description of a negotiator: In the most recent sales negotiation, this negotiator was open, friendly, warm, she schmoozed at the beginning of the negotiation, asserted her legal and policy arguments as to her position, asked questions for information about the situation, asked the other side about their interests, avoided answering a few challenging questions, conceded slowly, demonstrated respect for the other side and that she was listening to them, created options, found trade-offs that became part of the solution, grabbed a larger percentage of the pie that she created, held absolutely unmovable on the delivery date, added a promise of better quality follow-up in the future, and then, to get the deal done, split the difference at the end on the insurance cost. What negotiation style is this? Collaborative because she schmoozed and created options? Competitive because she was unmovable on the date and grabbed more of the pie? Compromising because she made trade-offs? And herein lays the problem with negotiation style labels: they hide the reality of what negotiators actually do, and need to do, in order to be effective. Part II of this Essay explains why we have a variety of labels for negotiation approaches and styles, and gives a brief history of their creation. Part III focuses on the problems with labels: the plethora of different labels that mean the same thing; the fact that labels are both underbroad and overbroad; and that these labels do not actually describe the skills beneath, particularly how labels gloss over the impact of social skills and ethical behavior. The last section argues for a different way of teaching skills—recognizing that a framework is necessary for laying out general concepts, and that our real focus has to be on the skills that provide our students with the tools to engage most effectively across a variety of contexts.