Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation
Fairness Beyond the Adversar y System: Procedural Justice Norms for Legal Negotiation
Rebecca Holland-Blumoff 0
0 Washington University School of Law , USA
Recommended Citation Rebecca Holland-Blumoff, Fairness Beyond the Adversary System: Procedural Justice Norms for Legal Negotiation, 85 Fordham L. Rev. 2081 (2017). Available at: http://ir.lawnet.fordham.edu/flr/vol85/iss5/8
The tale of the vanishing trial is, by now, familiar and well worn.1 The arc
and import of the narrative differ by teller: some decry the loss of an
adjudicated outcome, either by judge or by jury,2 and some praise the
proliferation of alternative methods for dispute resolution that might allow
for more flexibility and efficiency.3 Either way, the decline in trials and
adjudicated outcomes raises critical questions about the nature of the
adversary system. The decline in trials has raised particular concerns in the
criminal context, where “negotiated justice” has drawn a phalanx of critics.4
Plea bargaining is susceptible to a negotiation analysis,5 and understanding
plea bargaining as an essential interpersonal interaction casts doubt on the
idea that the criminal adversarial system enshrines the hallmarks of a just,
neutral process, rooted firmly in the rule of law. In the civil context, though,
worries are sometimes less acute: liberty is not at stake, the power
differential may be less dramatic between the parties, and the private ordering
* Professor of Law, Washington University School of Law; Visiting Professor of Law,
Harvard Law School, fall 2016. Thanks to Susan Appleton, Deborah Dinner, Matt Bodie, and
participants in Fordham University School of Law’s colloquium entitled Civil Litigation
Ethics at a Time of Vanishing Trials, particularly Judith Resnik and Bruce Green, for helpful
commentary and suggestions. For an overview of the colloquium, see Judith Resnik, Lawyers’
Ethics Beyond the Vanishing Trial: Unrepresented Claimants, De Facto Aggregations,
Arbitration Mandates, and Privatized Processes, 85 FORDHAM L. REV. 1899 (2017).
at issue in these cases has been subject to a “market” type of analysis.6
However, the shift from a system of public, adversarial, and ordered civil
dispute resolution to a set of private, negotiated, and ad hoc resolutions has
raised serious concerns about our enforcement of the laws and our
understanding of legal outcomes.
The disappearance of adjudicated civil disputes shines a keen light on what
we—as a society, as individuals, and as legal professionals—expect and want
from so-called “private” ordering. This Article takes as fundamental
) that laws and regulations play a vital role in our society and (
that even in a system of largely nonadjudicated justice, law and legal rules
should remain important in guiding the resolution of disputes in situations
where those rules would otherwise apply.7 Law and legal rules are our
society’s expression of justice; if we want outcomes to legal disputes that at
least comport with justice, what does the absence of trials tell us about the
optimal nature of negotiated justice? If justice is a key ideal for the resolution
of legal disputes, how can lawyers best achieve outcomes that are not, at a
minimum, at odds with the law? If we are negotiating, as I have argued in
prior work, in the “shadow of legal process,”8 what are the implications for
the appropriate behavior of lawyers in an adversary system?
One key component of fairness and legitimacy for our legal system is
procedural justice—the fairness of the process used to reach an outcome.
Almost a half century of robust empirical research has clearly established the
importance of procedural justice in how people assess the legitimacy of the
legal system, leading to important judgments about adherence to decisions as
6. For analysis using a market-based approach, see generally Maurits Barendrecht &
Berend R. de Vries, Fitting the Forum to the Fuss with Sticky Defaults: Failure in the Market
for Dispute Resolution Services?, 7 CARDOZO J. CONFLICT RESOL. 83 (2005); Frank E.A.
Sander & Stephen B. Goldberg, Fitting the Forum to the Fuss: A User-Friendly Guide to
Selecting an ADR Procedure, 10 NEGOT. J. 49 (1994); Steven Shavell, Alternative Dispute
Resolution: An Economic Analysis, 24 J. LEGAL STUD. 1 (1995). But see Fiss, supra note 2, at
1075 (“Settlement is for me the civil analogue of plea bargaining: Consent is often coerced;
the bargain may be struck by someone without authority; the absence of a trial and judgment
renders subsequent judicial involvement troublesome; and although dockets are trimmed,
justice may not be done. Like plea bargaining, settlement is a capitulation to the conditions
of mass society and should be neither encouraged nor praised.”).
7. By this, I certainly mean to exclude a category of “nonlegal” disputes—those for
which law typically provides no basis for resolution. For example, I do not include an ordinary
dispute between company executives as to whether they should introduce a new product into
the market or a basic dispute between a couple as to whether or not to have children. But as
the creative reader can imagine, of course, even these situations could, in unique
circumstances, theoretically lead to a resolution governed by law. See, e.g., Coke-Flavor Suit
Rejected, N.Y. TIMES (June 21, 1985),
http://www.nytimes.com/1985/06/21/us/coke-flavorsuit-rejected.html (discussing dismissal of a lawsuit seeking to force Coca-Cola to return “New
Coke” to Coke’s original formula) [https://perma.cc/JG8D-HG6K]; Gina Vivinetto, ‘Modern
Family’ Star Sofia Vergara Sued by Her Own Frozen Embryos, TODAY (Dec. 8, 2016),
(discussing a lawsuit brought purportedly by her own embryos, backed by her former fiancé,
for deprivation of property due to not being born) [https://perma.cc/T9SN-PLSZ].
8. Rebecca Hollander-Blumoff, Just Negotiation, 88 WASH. U. L. REV. 381, 384–85
(2010) (noting that “individuals are bargaining in the shadow of this fair process—in the
shadow, in essence, of due process—with the fairness of the process playing a critical role in
individuals’ experiences in legal dispute resolution negotiation”).
well as compliance with laws and rules.9 Although this research has mainly
been conducted in areas involving either a third-party decision maker10 or a
government actor,11 research has expanded in the last several decades to
include more nontraditional settings such as the family,12 the market,13 and,
most importantly here, legal negotiation in a civil dispute setting.14
Perceptions of procedural justice serve as important determinants of
people’s satisfaction with their experience in the justice system. In the
courtroom, understanding what kind of process is fair is facilitated by a set
of clear norms and rules that govern behavior. Judges oversee a formalized
process, parties sit in designated spaces, and the courtroom itself offers cues
about the role of the rule of law.15 Yet, as fewer cases come to resolution
through a judgment by a judge or a jury, the norms and rules of the courtroom
are less reliable and available as an indicator of what process is fair or what
benchmark by which to gauge fairness. When parties resolve their disputes
through negotiation—in the shadow of the adversarial process but not
directly within the adversary system—it is much harder to understand what
process will leave participants with the perception of procedural justice.
Shifting the burden of fair process from a neutral third party such as a judge
or arbitrator onto lawyers creates an ethical challenge for attorneys. Should
lawyers be responsible for creating a fair process for negotiating parties?
And, if so, how can they provide a fair process in negotiated settlement while
retaining their role as zealous advocates in an adversary system?
Part I of this Article provides background on procedural justice and its
relationship to negotiation. Part II then discusses the results of a recent
empirical study that I conducted on the factors that help shape perceptions of
procedural justice in the negotiation setting. Lastly, Part III explores the
strategic and ethical implications of these results for the practicing lawyer in
I. PROCEDURAL JUSTICE AND NEGOTIATION
As noted above, research on the role of procedural justice in shaping
reaction and adherence to decision-making processes is robust. The research
demonstrates that people’s views about their outcomes are shaped not solely
by how fair or favorable an outcome appears to be but also by the fairness of
the process through which the decision was reached.16 A fair process
provided by a third party leads to higher perceptions of legitimacy;17 in turn,
legitimacy leads to increased compliance with the law.18 Procedural justice
effects are important across legal and nonlegal settings. Several competing
theories provide potential explanations of the reason for procedural justice’s
importance: some believe that fair process is valued because it is likely to
lead to an accurate, fair outcome (the instrumental theory);19 others believe
that fair process sends a signal about one’s value and worth with respect to
the broader societal group (the group engagement theory);20 and yet others
believe that fair process provides a mental “heuristic,” or shortcut, to assess
one’s outcome when other benchmarks are unavailable (the fairness heuristic
Despite the lack of a neutral third-party decision maker, research has
suggested that procedural justice matters to people in the negotiation
setting.22 Even when individuals negotiate in a one-on-one context,
procedural justice plays a significant role in shaping reactions to the
negotiation outcome.23 Additionally, research has suggested that even in the
context of dispute resolution via negotiation in the civil legal context,
individuals still care about the fairness of process.24 Specifically, the more
fair negotiators perceive the negotiation process to be, the more likely they
are to believe that the agreement will be followed.25 Participants playing the
role of lawyers in one study were more likely to recommend a negotiated
outcome to their clients, and to believe that the agreement formed the basis
for a good, long-term solution, when the process was characterized as fair.26
Because research suggests that procedural fairness in negotiation plays a
significant role in shaping potential attorney reaction to the outcome of a
negotiation, the creation of a fair negotiation process by a lawyer is a critical
piece of the negotiation “toolkit.” Creating the perception of a fair process
for the opposing counsel and party is useful if it will increase the likelihood
of a recommendation of, and subsequent adherence to, a negotiated outcome.
This raises the question, considered below, of what constitutes fair process in
the negotiation setting. Research has focused previously on how individuals
make assessments about what a fair process is, but most of that research
occurred in the context of a third-party decision maker.27 The following part
considers the antecedent factors for judgments of fair process in the
II. PROCEDURAL JUSTICE ANTECEDENTS IN NEGOTIATION
Decades of research have established that four major factors are at the heart
of assessments of procedural justice: the opportunity to be heard; courteous
and respectful treatment; trust in the motives of the decision maker; and the
understanding that a neutral, unbiased rule of decision will be used.28
Individuals value having a voice in the process, perhaps because they believe
that sharing their side of a story will be important in ensuring a fair decision
and perhaps because it demonstrates that the decision maker values their
contribution.29 Individuals care about being treated with courtesy and respect
because it provides them with dignity.30 Trust and neutrality are sometimes
conflated and do have some conceptual overlap, but they can be distinguished
by intent: trust relates to the parties’ belief that a decision maker is motivated
by the desire to be fair and accurate, while neutrality means that there is no
bias (explicit or implicit) present and that a neutral rule is being used to
determine the outcome of the conflict.31
24. See generally Hollander-Blumoff, supra note 8 (discussing research showing that
whether a negotiation is conducted fairly has an effect on how negotiation outcomes are
25. See id. at 384; Pruitt et al., supra note 10, at 327.
26. See Hollander-Blumoff & Tyler, supra note 14, at 491.
27. See Hollander-Blumoff, supra note 8, at 384; Lind, Tyler & Huo, supra note 22, at
28. Tom Tyler & Steven L. Blader, Justice and Negotiation, in THE HANDBOOK OF
NEGOTIATION AND CULTURE 295, 300 (Michele J. Gelfand & Jeanne M. Brett eds., 2004).
29. See id.
30. See id. at 301.
31. See id. at 300–01.
Yet these antecedents may not map perfectly on to the negotiation context,
where no third-party adjudicator is present. On one hand, when two (or
more)32 lawyers are interacting, one can listen to the other and provide an
opportunity to be heard, and be courteous and respectful in that interaction as
well. On the other hand, when partisan advocates attempt to resolve a
conflict, it would be the rare attorney who expects neutrality from the other
party. Attorneys are consistently biased in favor of their own clients,33 and
our adversarial system of zealous advocacy not only expects that bias but
typically demands it.34 Similarly, trust in the motives of the other party
seems less important here in the classic sense of expectations regarding the
motive to reach the right outcome; lawyers may disagree strongly about the
right outcome, largely based on the starting point of their own client. In this
context, trust in the behavior of the attorney may be more relevant—is the
attorney speaking truthfully (or at least, not violating professional rules of
ethics for misleading statements),35 and can the other lawyer trust that an
agreement will likely be followed through on in the future?
In many other contexts in which procedural justice has been studied,
deviation from a set of procedural rules may provide an easy way for
participants to evaluate their voice, respectful treatment, neutrality, and trust
by offering a benchmark for appropriate treatment. But rules in negotiation
are few and far between. The Model Rules of Professional Conduct provide
that lawyers should not make misleading statements of material fact in
communication with another lawyer (including during negotiation),36 but
attorneys can disagree about what constitutes a “misleading” statement and
what facts are “material.”37 The Comment to Rule 4.1 provides even less
clarity by adding the following explanation as to what constitutes a
“statement of fact”: “Under generally accepted conventions in negotiation,
certain types of statements ordinarily are not taken as statements of material
fact. Estimates of price or value placed on the subject of a transaction and a
party’s intentions as to an acceptable settlement of a claim are ordinarily in
this category.”38 Beyond these so-called rules, requirements for negotiation
behavior are few and far between.39
In light of the lack of clear rules for behavior provided by law or codes of
professional conduct, questions abound regarding what the appropriate
behavior for attorneys in a negotiation setting looks like with respect to
fairness perceptions. In a recent study, I explored the question of what factors
lead to perceptions of fair process in this largely rule-free setting, empirically
testing the origins of procedural justice judgments in legal negotiation.40 The
study considered procedural justice in negotiation by surveying and coding
behavior of law students playing the role of attorneys in a negotiation over a
contract dispute.41 The students negotiated during a forty-five minute period,
after they had both met with a “client” and researched the relevant legal
doctrine to form an opinion about what might happen if negotiation was
unsuccessful and the case proceeded, in this instance, to a hypothetical
The study looked at perceptions of fairness in several ways. First,
individual participants in the role of attorney in a settlement negotiation were
asked about the presence of a variety of behaviors related to procedural
justice during the negotiation, as exhibited by themselves and by the other
party, including voice, respect, neutrality, and trustworthiness.43 Participants
were also asked to rate fairness globally.44 In addition, third-party coders
watched videotapes of the negotiations and coded for specific behaviors that
might be linked to particular procedural justice antecedent factors, such as
interrupting (voice), contentious behavior (courtesy and respect),
intentionally untruthful statements and unforced disclosure of potentially
damaging information (trust), and the use of objective benchmarks such as
legal cases, legal doctrine, industry standards, and potential arbitration
The results of this study suggested that all four of the variables that were
explored played a significant role in forming assessments of fairness in
negotiation when looking solely at individuals’ own assessments of the
behavior in the negotiation.46 However, there were some differences in the
relationship between procedural justice and how individuals assessed
themselves versus others.47 For example, one’s own courtesy and respect
behavior and the other party’s courtesy and respect behavior mattered to an
individual’s perceptions of procedural justice, but regression analysis
suggested that one’s own personal behavior in treating someone else
courteously and respectfully was a more significant driver than one’s
courteous and respectful treatment by the other party.48 Voice effects in both
40. See generally Rebecca Hollander-Blumoff, Formation of Procedural Justice
Judgments in Legal Negotiation, 26 GROUP DECISION & NEGOT. 19 (2016).
41. See id. at 24.
42. See id. at 24–25, 40.
43. See id. at 25.
44. See id.
45. See id. at 26–29.
46. See id. at 35.
47. See id.
48. See id. at 35–36.
directions were also important in shaping perceptions of fair process.49 With
respect to trust, unsurprisingly, individuals’ perceptions about the other
party’s trustworthiness were significantly related to assessments of fair
process, but individuals’ assessments of their own trustworthiness were less
important.50 Neutrality correlated with procedural justice judgments on its
own, but in regression analysis with other factors, its importance
diminished.51 In sum, the study results suggest that courtesy and voice are
the most important factors in a person’s judgments about fair process in
negotiation but that trust, and to a lesser degree, neutrality, also play a role.52
Taken as a whole, the results suggest that interpersonal relational factors may
be more significant than more structural behavior in terms of influencing
perceptions of fairness.53
These results suggest that negotiators who want to create perceptions of
procedural justice in negotiation would be well served to focus most
explicitly on treating their counterparts with courtesy and providing them
voice, with a meaningful but ancillary effort to act in a trustworthy manner
and to appear neutral. But interesting findings that may relate to neutrality’s
role in negotiation demand further discussion. In particular, thinking about
neutrality in negotiation, one might imagine that resorting to discussions
regarding what might happen if an agreement is not reached could provide
some neutral benchmark for discussion and that such a discussion might
promote procedural justice perceptions. Similarly, discussion of legal
doctrine, industry rules and standards, or specific language from the contract
that was the subject matter of the dispute, might provide indicia of neutrality
that in turn could lead to increased perceptions of procedural justice.
In contrast, though, discussion of potential outcomes in a third-party
dispute resolution process (in this study, as noted above, that process was
arbitration)54 was significantly and negatively correlated with assessments of
procedural justice, meaning that when parties discussed the potential
outcome in arbitration during the negotiation, they found the negotiation
process less fair.55 Similarly, discussing the main legal doctrine relevant to
the breach of contract case, substantial performance had a negative effect on
one’s own, but not the other party’s, perceptions of fair process.56 That is,
when a negotiator talked about substantial performance, her own perception
of the fairness of the negotiation process declined. Discussing industry
standards and specific contract language between the parties had no effect on
49. See id.
50. See id.
51. See id. at 36.
52. See id.
53. See id.
54. For the purposes of this Article, I would argue that the significant differences in
arbitration and litigation are less likely to play a role in changing the effects of procedural
justice in the settlement negotiation, although that is certainly a question that merits empirical
55. See Hollander-Blumoff, supra note 40, at 39–40.
56. See id. at 36–37 (noting that perceptions of procedural justice are influenced by one’s
perception of his or her own behavior).
assessments of fairness; industry standard discussions, though, were
significantly and negatively related to negotiators’ assessments of the
neutrality of the negotiation as a whole.57
Before proceeding to a discussion about the implications of this research,
a caveat is necessary. Importantly, there is not yet any empirical research on
the relationship between the procedural justice perceived by the lawyer and
the procedural justice perceived by the client; indeed, almost all procedural
justice research in the legal setting has asked the principals, not the agents,
about their perceptions of fair process. Additionally, the empirical research
that has considered lawyers has not considered the relationship between the
procedural justice perspectives of lawyers and those of clients. Given that
much of negotiation takes place without clients present,58 it is important to
understand that connection in a more nuanced way. Do lawyers have the
capacity to “check” fair process at the door and only report to their clients on
the ways in which an outcome is or is not fair or favorable? Or is there a
“pass-through” effect of fair process? The research highlighted above
suggests the latter, given that lawyers appear to be more enthusiastic about
recommending a settlement when they believe that the negotiation process
has been fair.59 When lawyers are more enthusiastic about a settlement,
presumably they pass along this enthusiasm to the client, and there is likely
to be a higher rate of acceptance of a negotiated settlement.60 Although this
effect has not yet been empirically tested, this Article proceeds on the
assumption that fair process for a lawyer will have a “transitive” effect on the
acceptance by the client so that higher procedural justice experienced by the
lawyer will translate to higher procedural justice for the client.61 Indeed, this
is why the ethics of the lawyer vis-à-vis procedural justice in negotiation are
particularly important. In the next part, I discuss the implications of this
research on lawyers’ perception of fair process for negotiation behavior.
Procedural justice may be an important consideration in negotiation for a
variety of reasons. First, a lawyer may want to use procedural justice as part
of her negotiation “tool kit,” knowing that such treatment may be likely to
lead to greater adherence to and acceptance of an agreement. And beyond
the instrumental value of procedural justice, there is intrinsic value to
individuals in having a fair process in negotiation, as suggested by the group
57. See id. at 31.
58. Recent research by Donna Shestowsky suggests that client satisfaction might increase
if clients were present during negotiation; participants in a field study consistently ranked
negotiating with clients present as one of the most appealing ways for a dispute to be resolved.
Donna Shestowsky, The Psychology of Procedural Preference: How Litigants Evaluate Legal
Procedures Ex Ante, 99 IOWA L. REV. 637, 673–74 (2014).
59. See Hollander-Blumoff & Tyler, supra note 14, at 484.
60. See Hollander-Blumoff, supra note 8, at 426–27.
61. If procedural justice experienced by lawyers is, in fact, a “dead end,” then this
discussion is less relevant and the focus should shift to the procedural justice experienced by
the client in the interaction with her attorney. It seems doubtful that any client would care,
independently, about the fair process experienced by her hired agent simply on its own terms.
engagement model of procedural justice.62 There is also broader societal gain
because processes that are perceived as procedurally fair are also likely to
increase perceptions of legitimacy of the legal system.63 This potential effect
on perceptions of legitimacy is of particular importance in a system of
negotiated justice, where reliance on individual adherence to outcomes,
rather than judicial oversight of outcomes, is especially relevant. These
concerns all suggest the added value of a procedural justice approach to
At the same time, however, substantive law matters. In their seminal and
deeply influential work on bargaining in the shadow of the law, Robert
Mnookin and Lewis Kornhauser argued that there was a strong role for
substantive legal rules in negotiation over family law outcomes; essentially,
individuals bargain in the shadow of legal endowments rather than with a
blank slate of potential choices.64 And Roger Fisher and William Ury argued
forcefully in their book, Getting to YES, that reference to objective criteria—
using some kind of external benchmark as indicia of legitimacy—is a key
way to do well in negotiation.65 Similarly, Fisher and Ury recommend the
strategic invocation of the “best alternative to a negotiated agreement”—the
BATNA.66 A BATNA is what will happen if a negotiated agreement is not
reached; in the case of a dispute for which there is an underlying legal basis
for resolution, the BATNA is typically what will happen in court or at
Thus, leading scholars have convincingly argued that substantive legal
endowments, and what an adjudicator is likely to do if negotiation processes
break down, are critical guideposts in negotiation practice. Additionally,
negotiation scholarship and teaching have widely supported and adopted this
viewpoint as negotiation “gospel.”67 But scholars have not previously
considered the effects of resorting to a discussion of legal endowments,
objective criteria, and BATNAs on procedural justice perceptions. My own
study indicated that inclusion of such “neutral” legal indicators in a
negotiation process had a significant, negative effect.68 When parties in a
negotiation refer to the potential arbitration outcomes that might result if
negotiation is not successful, both parties’ perceptions of fair process fall.69
And when one party discusses the legal doctrine, her own perception of
fairness falls.70 My research, demonstrating the potential negative effect of
62. See Tyler & Lind, supra note 20, at 139–40.
63. See TYLER, supra note 9, at 162.
64. See Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law:
The Case of Divorce, 88 YALE L.J. 950, 968–69 (1979).
65. ROGER FISHER & WILLIAM URY, GETTING TO YES 81–94 (1991).
66. See id. at 97–106.
67. For example, some commentary has suggested that the BATNA is the key to
negotiation power. See Russell Korobkin, Bargaining Power as Threat of Impasse, 87 MARQ.
L. REV. 867, 868–69 (2004).
68. See Hollander-Blumoff, supra note 40, at 39.
69. See id. at 39–40.
70. See id.
“law” on negotiation process fairness, thus suggests a thought-provoking
puzzle in regard to the procedural justice issue for lawyers.71
My empirical results are unable to speak to the underlying reasons why
invocation of legal norms negatively affects procedural justice perceptions.
It seems plausible that negotiators who are most focused on what will happen
in an adjudicated process are more likely to discuss that process. In that case,
are those negotiators less effective in some way because of their
preoccupation with that other process? Are they signaling a lack of
commitment to the negotiation process that undermines perceptions of
fairness by both parties? Does a negotiator’s own focus on legal doctrine
lead her to measure the fairness of a negotiation process against the norms of
an (imagined) adjudicative “fair process” and leave negotiation to come up
short in (imagined) comparison?
Regardless of the underlying mechanism for the result, if law matters, and
yet lawyers’ invocation of the likely adjudicated outcome during a
negotiation may lead parties to conclude that a negotiation is less fair, what
can lawyers do to overcome this paradox? I have long taught my negotiation
students that an understanding of legal endowments is critical but that an
extensive legal argument during a negotiation may be a waste of time, if not
counterproductive. I explain that in our adversary system, it is highly
unlikely that after such an exposition of the law—even a sound and
persuasive one—the other party to the negotiation will say, simply, “That’s
right—you win.” The nature of the adversarial system is that both parties
will compete and there will be an outcome determined by a third-party
neutral—highlighted perfectly by Justice Roberts’s famous
“ball-andstrikes” judge-as-umpire metaphor.72 And this neutral third party is simply
not present in a settlement negotiation. Both parties in a negotiation must
agree for a settlement to occur. This means that effective negotiation
behavior cannot center around legal argument in the same way that
courtroom advocacy does; persuasive negotiation behavior must differ from
the adversarial legal argument.
Legal disputes concern the rights and responsibilities of parties under a
rule of law, and the lack of a neutral third party during negotiation should not
be an invitation to jettison the importance of the law. The importance of legal
rules may be even more significant in negotiations with considerable power
and resource differentials. And yet a settlement negotiation typically
represents a private ordering, without resort to an adjudicative outcome, that
occurs for a variety of reasons that are outside the scope of this Article but
presumably does provide some set of benefits to the parties. If parties are
going to negotiate, and most of these negotiations will end the dispute, the
balance between the need for the law to play a role and the extrajudicial
nature of the process is paramount. We may rely on attorneys to “police” the
boundaries of legal settlement to ensure that legal endowments are respected
or, at least, traded off for other benefits.73 And yet, in addition to distributive
justice, people deeply care about the fairness of process, including in a
negotiation setting.74 Research on procedural justice suggests that
individuals are expecting—or, at the least, find beneficial—a fair process that
shadows the fair process they might get in an adjudicative setting.75 But
using legal endowments in a negotiation may promote the use of legal
standards at the expense of providing a procedurally just process.
So what should an ethical lawyer do in light of this conundrum? Should
lawyers resort to legal argument about what an adjudicative body might do
in order to ensure that legal norms are not overlooked or ignored, despite the
risk of negatively affecting the procedural justice of the negotiation? Or
should they ignore legal arguments about the likely outcome in negotiation
to demonstrate a commitment to the negotiation proceeding and avoid
building mistrust that negatively affects procedural justice perceptions and,
perhaps, ultimate adherence to the agreement?
Each option has considerable drawbacks. Ignoring the legal framework
has both strategic and ethical implications. Leaving the potential adjudicated
outcome out of the negotiation discussion eliminates an important
negotiation tool—resorting to BATNA—that can help to ensure that an
outcome falls within parameters set by law. The idea behind a BATNA is
that no one should agree to any negotiated outcome that is not at least as good
as or better than what he or she might receive if no agreement is reached.76
That is to say, in a legal case, the Getting to YES paradigm advises that a
negotiator should understand what the likely outcome at trial would be and
should never settle for less than what that outcome would provide to the
client. This is a way for negotiators to ensure that distributive justice is
respected in a world outside of third-party adjudication.
Potential outcomes and legal standards can also serve as the “objective
criteria” recommended by Getting to YES to help negotiate a favorable and
fair outcome.77 Getting to YES advises that objective criteria can shift the
negotiation discussion from a battle of wills to a battle of norms and, ideally,
shape the negotiation outcome against a backdrop of standards that can
provide legitimacy.78 Such objective criteria can include scientific standards,
industry norms, and, in legal cases, legal precedent.79 These criteria can be
very helpful in persuading opposing negotiators of the reasonable basis for
one’s demands. And, similar to BATNA, the use of objective criteria can
help ensure that a negotiated outcome fits within a range of distributively just
73. See Mnookin & Kornhauser, supra note 64, at 985–88 (discussing the role of lawyers
in the dispute resolution process).
74. See supra notes 22–26 and accompanying text.
75. See supra notes 22–26 and accompanying text.
76. See FISHER & URY, supra note 65, at 100.
77. See id. at 81–94.
78. See id. at 82–84.
79. See id. at 85.
outcomes.80 Yet, if their use is not conducive to a fair process, a lawyer may
lose as much as she gains by bringing up objective criteria.81
One potential solution is to think expressly about the two negotiations all
lawyers deal with—one with a client, the other with opposing counsel—as
distinct enterprises for the purpose of using objective criteria and external
benchmarking regarding a potential adjudicated outcome. Explicit
discussion with one’s own client regarding the external benchmarks by which
to measure the negotiated outcome may be very important and may be less
likely to cause a client to believe that the process of negotiation with the
lawyer is procedurally unjust. This is, in part, because the kind of neutrality
sought by a client may differ from the kind of neutrality that opposing counsel
might seek. Once these benchmarks are developed and discussed with a
client, there may be less need to resort to them expressly during the
negotiation, at least in terms of what might be lost by failing to discuss them
with opposing counsel. That is, as long as a lawyer has those benchmarks in
mind implicitly during the negotiation, that may serve the goals of both not
ignoring potential outcomes and not derailing the fairness of process of the
Another solution—one that more clearly addresses the potential gap
between a lawyer’s procedural justice experiences in the negotiation and the
client’s experiences—could involve the judge’s case management powers
under Rule 16 of the Federal Rules of Civil Procedure.82 Under Rule 16, a
judge could mandate that clients attend negotiations,83 which would first
have the effect of making procedural justice concerns more directly
connected to clients’ experience in negotiation rather than potentially “lost”
on their attorneys or perceived secondhand. Additionally, an explicitly
judge-managed settlement conference, in which the judge discusses doctrine
or precedent, might provide better indicia of neutrality for the purposes of
procedural justice judgments for both clients and lawyers alike, as opposed
to the behavior of an opposing counsel. This would allow a role for
discussion of the law without its potential negative effects on procedural
justice in negotiation.
Of course, involving the judge in this way also has drawbacks. If a judge
mandated that parties attend negotiation, there could be enforcement
problems if one party refused to comply. Additionally, attorneys might
bemoan the lack of flexibility, not to mention constraint on negotiation tactics
that would arise from a requirement of client presence.84 And a
judge80. See id. at 83.
81. Some negotiation teachers and scholars critical of this aspect of Getting to YES have
decried the “objective” aspect of objective criteria for years as specious, arguing that these
criteria were necessarily subjective and highly open to manipulation.
82. I am grateful to Judith Resnik for this helpful suggestion.
83. See FED. R. CIV. P. 16(a).
84. For example, a “good-cop/bad-cop” strategy in which the lawyer paints the client as a
bad cop would be exceptionally hard to execute with the client present. Clients might also
share information that attorneys would prefer to keep confidential or might bring emotion or
anger into the negotiation in a way that could hamper the lawyer’s effectiveness. Some of the
agency benefits of hiring a lawyer might be lost in such a setting.
managed settlement, of course, would add a significant layer of cost, time,
and formality to negotiation.
Because the effect of courtesy and respect on procedural justice is stronger
than the effect of a discussion of the likely outcome, it may be that more
research on procedural justice antecedent behavior could shed light on
whether an emphasis on the other procedural justice antecedents might
mitigate any potential negative effects of resorting to discussion of the likely
adjudicated outcome. Also, my research suggests that the discussion of a
legal case or precedent may have less effect on procedural justice than
reference to a specific legal doctrine and that reference to an industry
standard is less impactful than discussion of what will happen at arbitration.85
What may account for this difference, although it is subtle, is that perhaps
discussion of past legal cases may be more open to reasonably differing
interpretation, but discussion and prediction of future decisions appears more
partisan and extreme.86 Additionally, lawyers may differ significantly in how
they use legal doctrine in negotiation—while legal “argument” may be
counterproductive both in fostering procedural justice and in effectiveness,
perhaps there are other ways to deploy legal rules and principles in a more
persuasive and less adversarial manner.
Another important caveat to this discussion is that legal negotiations differ
significantly by type and nature. The research discussed above took place in
the context of a fairly straightforward contract dispute between two relatively
power-equivalent parties. In negotiations that involve more substantive
personal or civil rights, power differentials between the parties, or other
factors that may change the nature of the dispute, the role of using legal
doctrine and potential adjudicative outcome may be quite different.
Negotiations in cases that concern important potential legal precedent may
also be uniquely situated with regard to procedural justice concerns.
Similarly, multiparty negotiations and negotiations that involve the
government may also be so distinct as to call for particular analysis.
Although the empirical research I have described above is subject to
limitations, it suggests the importance of thinking extremely carefully about
the use of legal precedent and legal prediction in legal negotiation. While
such factors are the bread and butter of practicing attorneys in the midst of
an adjudication, their use in negotiation may have unexpected and unplanned
effects. Lawyers must take extra care to navigate the potential consequences
of using legal rules if they also want to reap the benefits of procedural justice
effects in their negotiation. Certainly, it seems as though it would be a
tremendous dereliction of a lawyer’s duty of zealous advocacy to fail to
adequately use the law as a safety net to ensure that a negotiated outcome is
not dramatically short of what the law might provide, even taking into
85. Hollander-Blumoff, supra note 40, at 39.
86. However, such parsing may be too fine in light of the complicated nature of video
account differences in perception regarding the likely outcome in a court.
But sensitivity to the impact that using the law and legal doctrine
adversarially in a negotiation may have on procedural justice is warranted.
There are psychological, systemic, and strategic reasons that lawyers should
care about perceptions of procedural justice in negotiation. But procedural
justice concerns must be balanced against the need to ensure that even when
the potential “umpire” in our adversary system is sitting on the sidelines, we
still find a way to respect the law and legal rules.
1. See generally Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD . 459 ( 2004 ) ; Benjamin Weiser, Trial by Jury, a Hallowed American Right , Is Vanishing, N.Y. TIMES ( Aug . 7, 2016 ), https://www.nytimes.com/ 2016 /08/08/nyregion/jury-trials -vanish-and-justice-isserved-behind-closed-doors .html?_r=0 [https://perma.cc/SGE6-MV2L].
2. See, e.g., Owen M. Fiss , Against Settlement, 93 YALE L.J. 1073 , 1075 ( 1984 ) (arguing against the “highly problematic” use of settlement to resolve most legal cases).
3. See, e.g., Frank E.A. Sander , Address at the National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (Apr . 7- 9 , 1976 ), reprinted in Varieties of Dispute Processing , 70 F.R.D. 79 , 111 ( 1976 ). See generally Gladys Kessler & Linda J. Finkelstein , The Evolution of a Multi-Door Courthouse , 37 CATH. U. L. REV. 577 ( 1988 ).
4. See, e.g., Stephen J. Schulhofer , Plea Bargaining as Disaster, 101 YALE L.J. 1979 , 1980 - 91 ( 1992 ) (discussing structural concerns in the plea bargaining context).
5. See Rebecca Hollander-Blumoff, Getting to “Guilty”: Plea Bargaining as Negotiation, 2 HARV . NEGOT. L. REV. 115 , 147 - 48 ( 1997 ).
16. See generally Casper et al., supra note 10; MacCoun & Tyler, supra note 10.
17. See TYLER , supra note 9 , at 162.
18. See id.
19. See generally JOHN THIBAUT & LAURENS WALKER, PROCEDURAL JUSTICE: A PSYCHOLOGICAL ANALYSIS ( 1975 ).
20. See generally Tom R. Tyler & E. Allen Lind , A Relational Model of Authority in Groups, 25 ADVANCES EXPERIMENTAL SOC. PSYCHOL . 115 ( 1992 ).
21. See generally Kees van den Bos et al., How Do I Judge My Outcome When I Do Not Know the Outcome of Others?: The Psychology of the Fair Process Effect , 72 J. PERSONALITY & SOC. PSYCHOL . 1034 ( 1997 ).
22. See generally Hollander-Blumoff & Tyler, supra note 14, at 477-79; Edward Kass, Interactional Justice, Negotiator Outcome Satisfaction, and Desire for Future Negotiations: R-E-S-P-E-C-T at the Negotiating Table, 19 INT'L J. CONFLICT MGMT . 319 ( 2008 ); E. Allen Lind, Tom R. Tyler & Yuen J. Huo , Procedural Context and Culture: Variation in the Antecedents of Procedural Justice Judgments, 73 J. PERSONALITY & SOC. PSYCHOL . 767 ( 1997 ).
23. See Hollander-Blumoff & Tyler, supra note 14, at 491 ( finding that procedural justice plays a significant role in bilateral negotiations).
32. For ease of discussion, I will refer to a dyadic negotiation between two lawyers throughout this Article, but I do not mean to exclude negotiations in which more than two parties are present from the scope of this Article .
33. See , e.g., Jane Goodman-Delahunty et al., Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes, 16 PSYCHOL . PUB. POL' Y & L. 133 , 135 ( 2010 ).
34. MODEL RULES OF PROF'L CONDUCT r. 1.3 cmt. 1 (AM . BAR ASS'N 2016 ) . The requirement of “zealous” advocacy has not been unanimously embraced . See, e.g., Paul C. Saunders, Whatever Happened to 'Zealous Advocacy'?, N.Y. L.J. , Mar . 11 , 2011 , at 4 (discussing changes to the New York Rules of Professional Conduct that drop the language of “zeal”).
35. MODEL RULES OF PROF'L CONDUCT r . 4 .1.
36. See id . r. 4.1 cmt . 2; see also Hollander-Blumoff, supra note 8 , at 403.
37. MODEL RULES OF PROF'L CONDUCT r . 4 .1 cmt. 2.
38. Id .
39. For example, a party cannot use threats or duress . See Hollander-Blumoff, supra note 8 , at 402.
71. See id.
72. See Roberts: 'My Job Is to Call Balls and Strikes and Not to Pitch or Bat,' CNN (Sept . 12, 2005 ), http://www.cnn.com/2005/POLITICS/09/12/roberts.statement/ [https:// perma.cc/2Q28-FKXR]. Despite its place in popular imagination, this view has been criticized for many years by prominent scholars. See generally Roscoe Pound, The Causes of Popular Dissatisfaction with the Administration of Justice, 29 ANN . REP. A.B.A. 395 ( 1906 ).