Fairness fares best in legal negotiations

Settlements perceived as better if process seems fair, WUSTL law professor says

It’s not just the money; it’s also the method when it comes to legal negotiations, according to Rebecca Hollander-Blumoff, JD, associate professor of law at Washington University in St. Louis.


Legal lore holds that attorneys must be adversarial to best represent their clients’ interests. This approach encourages lawyers to disparage and minimize the interests of opponents.

But the research of Hollander-Blumoff — to be published in the WUSTL Law Review in December 2010 and previously published in Law and Social Inquiry, the journal of the American Bar Foundation, in 2008 — suggests a winning-is-everything mindset has drawbacks. For example, if two attorneys walk away from negotiations with the same settlement, the manner in which they are treated directly affects their satisfaction.

“The one who feels she’s been treated fairly is more likely to be enthusiastic about that outcome than the person who feels she was treated unfairly,” Hollander-Blumoff says. “In turn, that attorney is probably going to be more enthusiastic about recommending that settlement to her client.”

Negotiation: a ‘poor stepchild’

Negotiation is a kind of a “poor stepchild” in the legal process compared to litigation, with its images of regal courtrooms and robed judges.

Yet, the majority of cases are resolved through negotiated settlements. Even so, few rules exist to govern the conduct of lawyers in negotiation.

Embracing the lawyer-as-shark attitude can be less effective than simply adhering to the rules of good communication.

Consider a scenario in which one attorney presents another with a desirable offer. As good as the proposal might be, if it comes without any prior meaningful conversation between the negotiators, it won’t be received as well as one in which both parties had a chance for discussion.

“My research suggests that the person who felt she had a voice is going to be more satisfied,” Hollander-Blumoff says.

Why fairness and satisfaction matter

Satisfaction after a settlement is important not only in specific negotiations but also to an overall perception of the legal system. Because settlements are the resolution method in so many cases, society’s view of the system is greatly informed by the atmosphere of these negotiated outcomes.

In addition, being treated fairly is likely to have long-range consequences regarding compliance.

“A feeling of fairness is likely to result in long-term adherence to that agreement,” Hollander-Blumoff says.

As critical as fairness is, it’s still crucial for law students to study every negotiation method.

“There are a lot of lawyers who adhere to the adversarial model so it’s really important to understand how it works,” Hollander-Blumoff says. “When you go into a negotiation, you’re either going to have to play by their rules or you’re going to have to change the rules.”

Hollander-Blumoff specializes in the connections between law and psychology regarding conflict resolution in her teaching, research and publications.

For interviews, please contact Nancy Fowler Larson at (314) 935-5251, nancy_larson@aismail.wustl.edu until Jessica Martin returns Sept.7, 2010.

Expert contact information: Rebecca Hollander-Blumoff, (314) 935-6043, hollanderblumoff@wulaw.wustl.edu