The Definition of Negotiation: A Play in Three Acts
Journal of Dispute Resolution
The Definition of Negotiation: A Play in Three Acts
Noam Ebner 0 1 2
John Lande 0 1 2
Andrea Kupfer Schneider 0 1 2
0 University of Missouri School of Law , USA
1 This Conference is brought to you for free and open access by the Law Journals at University of Missouri School of Law Scholarship Repository. It has been accepted for inclusion in Journal of Dispute Resolution by an authorized editor of University of Missouri School of Law Scholarship Repository. For more information , please contact , USA
2 Noam Ebner , John Lande, David Matz, and Andrea Kupfer Schneider , The Definition of Negotiation: A Play
Part of the Dispute Resolution and Arbitration Commons Recommended Citation
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The Definition of Negotiation:
A Play in Three Acts
INTRODUCTION
This Article is based on a conversation between Andrea, Noam, and David as
they drove to the airport following the Tower of Babel symposium.1 Then, John
metaphorically joined the ride and participated in the quest to find a good definition
of negotiation.
II.
ACT ONE: CAR RIDE WITH ANDREA, NOAM AND DAVID AFTER
THE SYMPOSIUM ON THE WAY TO THE AIRPORT
Andrea: . . . At the beginning of my career, I asked my dean for a maternity
leave and he said yes.
David: Thinking back on what you said yesterday, in the session about defining
negotiation, would this situation be considered a negotiation?
Andrea: Absolutely! I prepared in advance, thinking about the items that will
persuade my dean to give me what I want. I treated it as a negotiation because he
could say no, or offer a compromise like trading reduced classroom time for other
duties. I needed to be prepared with regards to my goals, the standards, and other
options that would serve my interests.2
This is like a negotiation I had this year with my dean, when I asked if I could
take a trip with students to Cuba. I utilized every bit of what I teach--how to frame
my requests in a way that will be most persuasive to him; how to communicate to
set up the meeting (email), make the request (in person), and ensure follow through
(again via email).3 I thought of different ways to meet my interests so that I could
* Andrea Kupfer Schneider is Professor of Law and Director of the Dispute Resolution Program at
Marquette University Law School. She can be reached at .
** Noam Ebner is a professor of negotiation and conflict resolution at The Werner Institute, Creighton
University School of Law. He can be contacted at .
*** David Matz is Professor Emeritus at the McCormack Graduate School of Policy and Global Studies,
University of Massachusetts Boston. He can be reached at .
**** John Lande is Isidor Loeb Professor Emeritus and Senior Fellow of the Center for the Study of
Dispute Resolution at the University of Missouri School of Law. He can be contacted at
.
1. CTR. FOR THE STUDY OF DISPUTE RESOLUTION, Moving Negotiation Theory From the Tower of
Babel Toward a World of Mutual Understanding, U. OF MO. SCH. OF L.,
http://law.missouri.edu/faculty/category/csdr/16-symposium-csdr/ (last visited Apr. 9, 2017).
2. See, e.g., Andrea Kupfer Schneider, Aspirations in Negotiation, 87 MARQ. L. REV. 675 (2004).
3. See, e.g., Andrea Kupfer Schneider & Sean McCarthy, Communication Choices, in THE
NEGOTIATOR’S DESK REFERENCE (Andrea Kupfer Schneider & Christopher Honeyman eds., DRI Press
2017)
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JOURNAL OF DISPUTE RESOLUTION
offer him different budget options that would make me happy. I researched
objective criteria (like what other university departments had done) and utilized outside
helpers (the Office of International Education, for example) to help sell my ideas.4
David: But one could say, all of that was on your side, or in your mind. It was
your perception of the situation based on your preparation. This was work you
needed to do. As far as the dean was concerned, you came to him with a request,
and he said yes. No negotiating, just independent decision making.
Noam: Andrea clearly experienced it as a negotiation. This might suggest that,
while we could look for an objective standard for what constitutes a negotiation, we
might also recognize that negotiation is subjectively experienced, and perhaps the
term negotiation can encompass any experience in which you feel you are in a
negotiation.
David: Well, let me ask you this: you walk into a store to buy a carton of milk.
You take it off the shelf, pay the price, and leave the store. Is that a negotiation?
Andrea: I suppose this could be negotiation at its broadest level. You decided
what you wanted, what you were willing to pay, etc. The store opened with an
offer, putting the milk on the shelf with a price tag, and you accepted it. That’s the
structure of a negotiation.
David: So, offer and acceptance – that’s all you need?
Noam: Well, that’s what the legal formulation would be, looking back from
the viewpoint of how a contract is formed.5 Every m (...truncated)