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Summary: Lawyers: Expand the Pie and Cut Transaction Costs First!
Comment: I have had the pleasure of taking a minicourse using these methods from Professor Mnookin, and can attest to the excellence of the concepts suggested here. Anyone who benefited from and enjoyed the groundbreaking work in Getting to Yes will appreciate and value this follow-on work in more beneficial negotiations. You will find BATNAs again (Best Alternative to a Negotiated Agreement), but also great tools for maneuvering with your client, the other attorney, and the problem at hand.This is a book for lawyers, but indirectly it is also a book for clients and what they should look for and expect from their attorney in a dispute. When I went to law school, every case was treated as though it had the potential to go to the Supreme Court. With the exception of a brief class in decision theory, there was no training in anything other than preparing to wage World War III on behalf of the client. Now even preparing to wage World War III is very expensive, and may chew up a lot of the benefits of contesting the issue. The ideas here go well beyond that perspective. "At its core, problem-solving implies an orientation or mindset -- it is not simply a bundle of techniques." "The goal is to search for solutions that save the clients interests while also respecting the legitimate needs and interests of the other side." "Rather than starting a war at the outset, you can begin your legal negotiations by trying to get your clients' problem solved as efficiently and creatively as possible." A strength of this book is to realize that although it would be great if every lawyer took this approach, more will not than will for the immediate future. So the process takes that into account. If the other side cannot and will not look for better solutions, you can take a principled approach that may still create some better results than would otherwise occur. For example, you might explain to the recalcitrant opposing attorney what you will do if they remain recalcitrant while explaining what else you will do instead if they do cooperate. I know from the course I took that the biggest barrier is that the clients and the attorneys are reluctant to candidly share information with each other. It is from that sharing that ways of creating mutually more beneficial results can happen. For example, in one hypothetical example, a man wants to rent an apartment. He is short of money and furniture. The woman he wants to rent it from has the furniture he needs and lacks a place to store her furniture. She wants more money, and he doesn't want to pay too much. Obviously, there's a middle ground where they are both better off if they can agree. That's the type of situation where this book is aimed. Obviously, if the two parties are going to have more dealings in the future, there is greater room for mutual accommodations that are beneficial. More and more fields in law are becoming subject to a search for resolution rather than a contest of wills. Environmental law is a good example. Recently, matrimonial lawyers have begun seeking to make this shift as well. Large law firms are starting alternative dispute resolution practices. I hope all of this will succeed. It is a great way to improve society, provide better economic results, and to create more pleasant dispute and negotiation resolution. If you like the ideas here, I strongly suggest that you take courses where simulated negotiations with other attorneys are used. That's the way to really learn how to use these concepts. Good luck with your next dispute!
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