CORE Metadata, citation and similar papers at core.ac.

uk
Provided by KnowledgeBank at OSU

The Past and Future Challenges of Negotiation

Theory

ANDREA KUPFER SCHNEIDER & Roy J. LEWICKI

I. MEETING THE CHALLENGE OF INTERDISCIPLINARY TEACHING

11. GLOBAL PERSPECTIVES IN NEGOTIATION

Ill. TURNING THEORY INTO PRACTICE

IV. CONCLUSION

Academic courses in negotiation have an approximately forty-year

history. By examining the development of these courses in negotiation, theory
and research study teachings, and imparted skills, we can evaluate the
development of negotiation theory' as a field. The last thirty years in
particular provide an important lens on the explosion of dispute resolution and
negotiation in law and business school curricula. Furthermore, this analysis
will help situate us for the challenges of the next thirty years.
If negotiation is to continue to expand its reach, becoming both more
useful and insightful, then negotiation theory needs to become more
interdisciplinary, more global, and more practical. In meeting the first of these
challenges, negotiation scholars have tackled the interdisciplinary work of
others. For the other two challenges, however, we argue that more will need
to be done over the next thirty years.

* Professor of Law and Director of the Dispute Resolution Program, Marquette

University Law School. Many thanks to the students of the Ohio State Journalon Dispute
Resolution for organizing this symposium and to the participants for their comments. Also
my thanks go to my faculty colleagues at Marquette at our Works in Progress symposium
for their comments and to my research assistant Molly Madonia for her help with this
article.
** Irving Abramowitz Professor of Management and Human Resources Emeritus,
Fisher College of Business, The Ohio State University. Thanks to my colleagues at Ohio
State and to Andrea for inviting me to co-author this paper.
' The authors acknowledge that with regard to this paper, this term may be used
differently in the law and business school fields. In the behavioral science research field,
'theory' would refer to the fundamental behavioral science theoretical constructs of
personal and contextual factors that affect how people negotiate. In the law field and within
this context of this paper, 'theory' refers both to this research foundation, as well as to how
it is applied to the negotiation process.
1
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

Furthermore, all three of these challenges will be better met when

negotiation theory (as used in law and business schools) is both a giver and
receiver of wisdom. For example, the law- and business-based theory of
problem-solving has permeated to other fields. Likewise, the best advice from
communication or political science has been brought to law and business
schools. For the other challenges, again, this is not yet the case. Negotiation
theory in the U.S. should both give advice for how to deal with cross-cultural
and international disputes while receiving the best advice from negotiators
around the world. And our best theory of negotiation should operate in a
continual cycle of learning from practice, building a theory, testing that in
practice, and refining the theory in order to really make it practical.
This essay will look both backward and forward within the development
of negotiation theory in law schools and business schools to highlight these
challenges. The first section will address the historical assemblage of
negotiation theory, coursework, and exercises drawn from a variety of
disciplines and pulled together as the core instructional foundation for early
law and business school classes. We will look forward to outline how
interdisciplinary negotiation theory and instructional methods will need to
continually draw upon these separate strands in order to create a vibrant and
robust-and yet practical-theory of negotiation.
The second section will examine the reach of negotiation theory and
research into cross-cultural, international, and global contexts, arguing that,
while U.S. practitioners and professors have written about the application of
negotiation theory in a global context, much more needs to be done so that we
in the U.S. are drawing from the best and richest materials found around the
world. The language and cultural barriers must be breached so that the
communication is more extensive than simply broadcasting the U.S. best
practices overseas. Moreover, we must be assured that our students are
prepared to negotiate effectively in an increasingly multicultural world.
Finally, the last section of the essay will address how negotiation theory
is taught and implemented in order to ensure that theory and research on
effective negotiation are turned into best practices. Both early and
contemporary negotiation curricula have focused on role-plays and case
studies to foster a more experiential learning environment-and this has been
wildly popular. And to build on these strengths, the challenges for the next
thirty years are to more directly identify what, how, and whom we teach. Past
revolutions of negotiation theory have occurred at the conceptual levels-for
example, shifting from an adversarial to a problem-solving approach. And,
yet, we know that practitioners need to not only shift their thinking about the
preferred approach, but also to be able to translate their thinking into action
and model the actual skills negotiators need. Focusing more on how we teach
these skills-from adding more than role-plays in class to thinking carefully
2
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

about who is in our audience-will also help make the application of

negotiation theory as compelling (and effective) for the next thirty years as it
has been for the past thirty.

I. MEETING THE CHALLENGE OF INTERDISCIPLINARY TEACHING

Although today the majority of both law schools and business schools
teach negotiation (and, between the two professions, likely have a higher
percentage of students taking some kind of negotiation class than any other
field), neither law nor business can actually lay sole claim to the underlying
theories of negotiation. Early theories of negotiation relied on an amalgam of
conceptual works from economics and game theory, 2 labor relations, 3
international relations, 4 and social psychology.' Only into the 1980s, as
negotiation courses became more standard, did material and experts in
negotiation emerge. In the mid-1970s, business schools began to recognize
that negotiation and conflict management skills were broadly applicable to a
variety of managerial disciplines, not just to sales or labor relations. Courses
emerged that combined theory and research "games" (e.g. Prisoner's
Dilemma) with advice offered from early 'how to do it' management books6

,
and eventually led to textbooks and resource materials devoted to a business
school negotiation course.' For law schools, a focus on negotiation as
problem-solving coincided with the growth of alternative dispute resolution as
a method for resolving cases outside the courtroom. ' Although these
developments did not necessarily depend on one another, the shift in both the

2 SIDNEY SIEGEL & LAWRENCE E. FOURAKER, BARGAINING AND GROUP DECISION

MAKING (1960); ANATOL RAPOPORT, STRATEGY AND CONSCIENCE (1964).
JOHN T. DUNLOP & JAMES J. HEALY, COLLECTIVE BARGAINING: PRINCIPLES AND
CASES (Richard D. Irwin, Inc. rev. ed., 1955); RICHARD E. WALTON & ROBERT B.
McKERSIE, A BEHAVIORAL THEORY OF LABOR NEGOTIATIONS: AN ANALYSIS OF A SOCIAL
INTERACTION SYSTEM (1965).
4 THOMAS C. SCHELLING, THE STRATEGY OF CONFLICT (1960); ROGER FISHER,
INTERNATIONAL CONFLICT FOR BEGINNERS (1969); 1. WILLIAM ZARTMAN & MAUREEN R.
BERMAN, THE PRACTICAL NEGOTIATOR (1982).
MORTON DEUTSCH, THE RESOLUTION OF CONFLICT (1973); JEFFREY Z. RUBIN
&

BERT R. BROWN, THE SOCIAL PSYCHOLOGY OF BARGAINING AND NEGOTIATION (1975).

6 GERARD I. NIERENBERG, FUNDAMENTALS OF NEGOTIATING 125-26 (1973); CHESTER
Louis KARRASS, GIVE & TAKE: THE COMPLETE GUIDE TO NEGOTIATING STRATEGIES AND
TACTICS (1974).
7 Roy J. LEWICKI & JOSEPH AUGUST LITTERER, NEGOTIATION (1985); NEGOTIATION:
READINGS, EXERCISES, AND CASES (Roy J. Lewicki & Joseph A. Litterer, eds., 1985).
8 See, e.g., FOUNDATIONS OF DISPUTE RESOLUTION: VOL. I OF COMPLEX DISPUTE
RESOLUTION (Carrie Menkel-Meadow ed., 2012).

3
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

lawyering skills of negotiation and mediation was reflected in the development

of negotiation theories emerging from law professors.
In the early 1980s, law professors writing in negotiation focused on
convincing lawyers that a different kind of approach to negotiation made
sense. Roger Fisher's Getting to Yes was published in 1981,9 Gerry Williams
wrote about cooperative versus competitive negotiators in 1983,io and Carrie
Menkel-Meadow wrote her iconic article on legal problem-solving in 1984.1'
The shift in focus from competitive negotiations to problem-solving was the
primary contribution of these legal writers. Much of the rest of the 1980s and
into the 1990s focused on how to properly teach this approach. Yet, even then,
a significant percentage of the readings continued to be from other fields as
older readings in business, international relations, and game theory were
updated with the newest articles and experiential activities." Beginning in the
I 990s, new fields and new readings were added. " Cognitive or
psychological barriers were first addressed by a group of psychologists and
economists,14 compiled into the volume Barriers to Conflict Resolution'5

,
and then widely translated into shorter applications and experiments
through their students' efforts,1 6 as well as the work of other psychologists
who focused on the elements of persuasion. " A sharpened focus on
emotions and identity were also adapted into coursework, and led to

9 ROGER FISHER & WILLIAM URY, GETTING TO YES (1981).

'0 GERRY WILLIAMS, LEGAL NEGOTIATION AND SETTLEMENT (1983).
" Carrie Menkel-Meadow, TowardAnother View ofLegal Negotiation: The Structure
of ProblemSolving, 31 U.C.L.A. L. REV. 754 (1984).
12 See, e.g., ROY J. LEWICKI, JOSEPH A. LITTERER, JOHN W. MINTON & DAVID
SAUNDERS, NEGOTIATION (2d ed. 1994); JEANNE BRETT, LEONARD GREENHALGH,
DEBORAH KOLB & Roy LEWICKI, THE MANAGER AS NEGOTIATOR AND DISPUTE RESOLVER
(1985).
1 For example, two early articles in the OHIO STATE JOURNAL ON DISPUTE
RESOLUTION show the push toward other disciplines. See, e.g., Gary Goodpaster, Rational
Decision-Makingin Problem Solving Negotiations: Compromise, Interest- Valuation, and
Cognitive Error, 8 OHIO ST. J. ON DISP. RESOL. 299 (1993); Laura Nader, Controlling
Processes in the PracticeofLaw: Hierarchyand Pacificationin the Movement to Re-Form
Dispute Ideology, 9 OHIO ST. J. ON DISP. RESOL. 1 (1993).
14 See, e.g., THE BARRIERS TO CONFLICT RESOLUTION (Kenneth Arrow et al. eds,
1995); MAx H. BAZERMAN & MARGARET NEALE, NEGOTIATING RATIONALLY (2002).
15 THE BARRIERS TO CONFLICT RESOLUTION, supra note
14.
" See, e.g., Russell Korobkin & Chris Guthrie, Psychology, Economics, and
Settlement: A New Look at the Role of the Lawyer, 76 TEx. L. REV 77, 141 (1997).
1 See, e.g., ROBERT B. CIALDINI, INFLUENCE: THE PSYCHOLOGY OF PERSUASION
(1993).

4
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

rethinking about what makes negotiations difficult'", as well as new

consideration of mood " and emotions as more significant factors in
negotiation.2 0
By the early 2000s, negotiation training was expanding again, this time
to include hard sciences, 21 complex adaptive systems, a larger array of
types of psychology, 22 and more from the field of anthropology,
particularly in terms of thinking about cultural differences. 23 In most
negotiation courses today-and in negotiation textbooks-students could
well be reading the classics listed above plus an array of more sophisticated
game theory, 24 cognitive psychology, 25 neuroscience, 26 emotion, 27
communication and persuasion, 28 and more.

18 DOUGLAS STONE, BRUCE PATrON & SHEILA HEEN, DIFFICULT CONVERSATIONS:

How To Discuss WHAT MATTERS MOST (1995).
19 Clark Freshman, Adele Hayes & Greg Feldman, The Lawyer-Negotiator as
Mood Scientist: What We Know and Don't Know About How Mood Relates to
Successful Negotiation, 2002 J. DisP. RESOL. 1, 79 (2002).
20 ROGER FISHER & DANIEL SHAPIRO, BEYOND REASON: USING EMOTIONS As You
NEGOTIATE (2005); Melissa Nelken, Negotiation and Psychoanalysis: If I'd Wanted
to Learn About Feelings, I Wouldn't Have Gone to Law School, 46 J. LEGAL EDUC.
420 (1996); Melissa Nelken, Andrea Kupfer Schneider & Jamil Mahuad,1fI'd Wanted to
Teach About Feelings, I Wouldn't Have Become a Law Professor, in VENTURING BEYOND
THE CLASSROOM: VOLUME 2 IN THE RETHINKING NEGOTIATION TEACHING SERIES 357-70
(Christopher Honeyman et al. eds., 2010) [hereinafter VENTURING BEYOND].
21 Douglas H. Yam & Gregory Todd Jones, In Our Bones (or Brains): Behavioral
Biology, in THE NEGOTIATOR'S FIELDBOOK 283-92 (Andrea Kupfer Schneider
&
Christopher Honeyman eds., 2006) [hereinafter THE FIELDBOOK] (summarizing their
research suggesting that we may be primed to collaborate more than to compete).
22 Donna Shestowsky, Psychology and Persuasion,in THE FIELDBOOK, supranote 21,
at 36-71.
23 See infra note 53 and accompanying text.

24 STEVEN J. BRAMS, NEGOTIATION GAMES: APPLYING GAME THEORY TO

BARGAINING
25
AND ARBITRATION (Routledge rev. ed., 2003) (1975).
MAX H. BAZERMAN, JUDGMENT IN MANAGERIAL DECISION MAKING (4th ed. 1998);
MALCOLM GLADWELL, THE TIPPING POINT: How LITTLE THINGS CAN MAKE A BIG
DIFFERENCE (2000); STEVEN D. LEVITT & STEPHEN J. DUBNER, FREAKONOMICs: A
ROGUE ECONOMIST EXPLORES THE HIDDEN SIDE OF EVERYTHING (Rev. and expand.
ed., 2006); RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS
ABOUT HEALTH, WEALTH, AND HAPPINESS (2009).
26 DAN ARIELY, UPSIDE OF IRRATIONALITY: THE UNEXPECTED BENEFITS OF
DEFYING LOGIC AT WORK AND AT HOME (2010).
27 See generally FISHER & SHAPIRO, supra note 20; DANIEL GOLEMAN, EMOTIONAL
INTELLIGENCE (1995).
28 KATHLEEN KELLEY REARDON, BECOMING A SKILLED NEGOTIATOR (2004); G.
RICHARD SHELL, BARGAINING FOR ADVANTAGE (2d ed. 2006).

5
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

At the same time, new subjects and fields were introduced to negotiation
courses in law schools through the "Canon of Negotiation" project 29 and the
ensuing Negotiator's Fieldbook.3 0 The Canon project started through a
conference of noted negotiation theorists and teachers, attempting to find out
what common items are taught in all negotiation classes. When, during the
conference, we discovered that only six topics were taught across all of the
fields, 3' the ensuing Marquette Law Review symposium and the Fieldbook
then tackled the subjects that should or could be taught in a negotiation course
in any discipline. New subjects in the Fieldbook included action science
(based on education theory),32 complexity theory,33 and theory of mind. 4
Subjects that had already started to make their way into law teaching-
emotions, trust 3 5 , apology, 36 heuristics, decision analysis, 3 7 game theory
and others-were further explored. The Fieldbookalso tried to expand the
contexts in which we saw negotiations and identify the lessons from those
contexts. Some chapters in the Fieldbook discuss lessons from hostage
negotiations, 3 8 the military,3 1 indigenous conflict4 0 and even negotiating
for the last seat on an oversold airplane."
On the business school side, during the same time period (the 1980s

29 Kevin Gibson, The New Canon of Negotiation Ethics,

87 MARQ. L. REV. 747-52
(2004).
30 Roy J. Lewicki, Trust and Distrust, in THE FIELDBOOK,
supranote 21, at 191-203.
31 Christopher Honeyman & Andrea Kupfer Schneider, Catching Up with the Major-

General:The Needfor a "Canon of Negotiation", 87 MARQ. L. REV. 637-48 (2004).

32 Michael Moffitt & Scott R. Peppet, Action Science and Negotiation, 87 MARQ. L.

REV. 649-54 (2004).

33
Scott H. Hughes, Understanding Conflict in a Postmodern World, 87 MARQ. L. REV.
681-90 (2004).
34 David Sally, Social Maneuvers and Theory of Mind, 87 MARQ. L. REV. 893-
902 (2004).
3' Lewicki, supra note 30.
36 Jonathan R. Cohen, Advising Clients to Apologize, 72 S. CAL. L. REV. 1009-69

(1999); Jennifer K. Robbennolt, Apologies andSettlement, 45 CT. REV.: THE J. OF THE AM.
JUDGES Ass'N 90-97 (2009).
37 Jeffery M. Senger, Decision Analysis in Negotiation, 87 MARQ. L. REV. 723-35
(2004).
38 Paul J. Taylor & William Donohue, Hostage Negotiations Opens Up, in THE

FIELDBOOK, supra note 21, at 667-74.

' Leonard L. Lira, The Military Learns to Negotiate, in THE FIELDBOOK, supra
note 21, at 675-86.
40 Bee Chen Goh, Typical Errors of Westerners, in THE
FIELDBOOK, supranote 21,
at 293-301.
" Robert Dingwall & Carrie Menkel-Meadow, The Last Plane Out..., in THE
FIELDBOOK, supra note 21, at 687-97.

6
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

and 1990s), the knowledge base about negotiation expanded dramatically.

Bazerman and Lewicki 42 started the first research conference on
negotiation in organizations, drawing scholars from multiple social science
disciplines and encouraging them to share their perspectives and stimulate
more 'applied' research on negotiation theory that went beyond simple
game theory research paradigms. This initiative led to a stream of
additional "Research on Negotiation in Organizations"4 3 conferences and
the formation of two new professional associations where theory and
research could be shared (the Conflict Management Division of the
Academy of Management and the International Association of Conflict
Management), thereby creating a collegial venue for sharing new ideas and
approaches. In the late 1980s, the Hewlett Foundation began funding
several university centers to pursue both research and practice in dispute
resolution, stimulating many cross-disciplinary conversations about
negotiation theory and applications, creating new academic courses, and
supporting doctoral students who broke new ground in many areas. Among
the many niche research areas that emerged during this era were topics
such as cognitive biases in conflict and negotiation 4" , ethics in
negotiation45, gender and negotiation46, international and cross-cultural
negotiation4 7 , or the ways that theory and pedagogy needed to be reframed
to be effectively applied to negotiating in long term relationships. 48 The
leading textbooks 49 used in business school negotiation courses have
regularly updated and integrated this expanding knowledge base.
The history of interdisciplinary integration into negotiation theory is a
strong one with numerous disciplines contributing to the wisdom or
"canon" of what is generally taught. Research agendas and empirical work
support the wide expansion of these many strains into negotiation theory.
Of the three challenges outlined in this essay, this first one has most

42 MAx H. BAZERMAN & Roy J. LEWICKi, NEGOTIATING IN ORGANIZATIONS (1983).

43 RESEARCH ON NEGOTIATION IN ORGANIZATIONS (Roy J. Lewicki, Robert J. Bies
&

Blair H. Sheppard eds., 1986-1999).

44 BAZERMAN & NEALE, supra note 14; BAZERMAN supra note 25.
4' Bazerman & Lewicki, supra note 42 at 68-90
46 DEBORAH M. KOLB & JUDITH WILLIAMS, THE SHADOW NEGOTIATION: How
WOMEN CAN MASTER THE HIDDEN AGENDAS THAT DETERMINE BARGAINING SUCCESS
(2000).
47
JEANNE M. BRETT, NEGOTIATING GLOBALLY: HOW TO NEGOTIATE DEALS, RESOLVE
DISPUTES, AND MAKE DECISIONS ACROSS CULTURAL BOUNDARIES (2001).
4 LEONARD GREENHALGH, MANAGING STRATEGIC RELATIONSHIPS: THE KEY TO
BUSINESS SUCCESS (2001).
49
Roy LEWICKI, DAVID SAUNDERS & BRUCE BARRY, NEGOTIATION (7th ed. 2014);
LEIGH THOMPSON, THE MIND AND HEART OF THE NEGOTIATOR (5th ed. 2012).

7
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

successfully been met in the last thirty years with every expectation that
both law and business will continue to be open to receive and utilize the
best advice from a variety of fields. Furthermore, the balance between
giving and receiving is also well managed. Much of the explanation and
justifications for integrative and problem-solving negotiation come from
law and business negotiation theories.so Challenges to the negotiation
paradigms established by economists or international relations theorists
(which had tended to be based on purely free-market economic ends or
power-based models) were crucial for advancing the field of negotiation
in many different disciplines and have led to a better understanding of the
cognitive and behavioral motivations behind economic decisions." The
expanding work into procedural justice in negotiation is another example
of where legal frameworks can be helpfully applied in a variety of other
disciplines to think about negotiation.52

II. GLOBAL PERSPECTIVES IN NEGOTIATION

The second challenge for negotiation theory in the U.S. has been
dealing with cross-cultural and international perspectives while making
sure that our theory builds on expertise from all around the world. Here,
the balance of input versus outputs is much more out of proportion, since
much of U.S. theory is still U.S.-centered and U.S.-based.
U.S. negotiation theorists have considered global perspectives in
several different ways. First, as the global economy truly emerged over
the last thirty years, negotiation courses in the U.S. have tried to keep in
step by including sensitivity to the differences in cross-cultural negotiation
as a separate and necessary part of negotiation competence. Scholars have

s For more on the difference and distinction of legal discourse, see JAMES BOYD
WHITE, Law as Language, HERACLES' Bow: ESSAYS ON THE RHETORIC AND POETICS OF
THE LAW 77-106 (1985).
s1 See, e.g., DANIEL KAHNEMAN, THINKING, FAST AND SLOW (2011); DAN ARIELY,
PREDICTABLY IRRATIONAL: THE HIDDEN FORCES THAT SHAPE OUR DECISIONS (2008).
52 See, e.g., Nancy A. Welsh, PerceptionsofFairness, in THE
FIELDBOOK, supra note
21, at 165-175; Nancy A. Welsh, Stepping Back through the Looking Glass: Real
Conversationswith Real Disputantsabout the Place, Value and Meaning ofMediation, 19
OHIO ST. J. Disp. RESOL. 573 (2004); Nancy A. Welsh, Disputants'DecisionControl in
Court-Connected Mediation: A Hollow Promise Without ProceduralJustice, 2002 J.
DisP. RESOL. 179 (2002).

8
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

addressed culture as a variable in negotiation ' as well as examining the

importance of understanding cross-cultural differences. 54
While these training experiences may have run the risk of veering into
the stereotypical-i.e. since China is culturally different from the U.S. in
the way that it engages negotiations, therefore this is the way all Chinese
negotiate-other scholars have insisted that negotiation training in the 21 1
century incorporate cross-cultural profiles and experiences into
negotiation awareness and education. Naturally, the desire to train
negotiators in these skills immediately begged the question about 'what'
to teach and 'how' to teach it. While early works focused on the cultural
nuances of a single country", later studies proposed broad frameworks by
which many cultural characteristics could be systematically aggregated
and emulated in both research methodologies and training materials. 5 6
Research on cultural differences and negotiation has thrived over the last
two decades. 5 7 But as one of us, in a recent review of this literature, has
described it at the end of two decades:

(1) there are many models and no one model will explain every cross-
cultural situation;
(2) most approaches to cross-cultural negotiation tend to ignore the
amount of within-culture variation that exists as a function of other
context factors, the nature of the problem, and so on; and
(3) while cultural differences attempt to account for behavior at the
group/aggregate level, any given member of that group may or may

5 See, e.g., KEVIN AVRUCH, CONTEXT AND PRETEXT IN CONFLICT RESOLUTION:

CULTURE, IDENTITY, POWER, AND PRACTICE (2012); JEANNE M. BRETT, NEGOTIATING
GLOBALLY: How To NEGOTIATE DEALS, RESOLVE DISPUTES, AND MAKE DECISIONS
ACROSS CULTURAL BOUNDARIES (3d ed., 2014).
54 PAT CHEW, THE CONFLICT AND CULTURE READER (2001).
s See, e.g., John L. Graham, A Comparison of Japanese and American Business
Negotiations, I INT'L. J. RES. MARKETING 51-68 (1984).
56 GEERT HOFSTEDE, CULTURE'S CONSEQUENCES: INTERNATIONAL DIFFERENCES IN
WORK-RELATED VALUES (1980); Stephen E. Weiss, Negotiatingwith "Romans": A Range
of Culturally-Responsive Strategies-Part 1, 35 SLOAN MGMT. REV. 51-61 (1994);
Stephen E. Weiss, Negotiating with "Romans": A Range of Culturally-Responsive
Strategies-Part2, 35 SLOAN MGMT. REV. 1-16 (1994).
5 Cf THE HANDBOOK OF NEGOTIATION AND CULTURE (Michele J. Gelfand & Jeanne
M. Brett eds., 2004). See MARA OLEKALNS & WENDI L. ADAIR, HANDBOOK OF RESEARCH
ON NEGOTIATION (2013) for reviews. See also early examples in the OHIO STATE JOURNAL
ON DISPUTE RESOLUTION. Nobuaki Iwai, Alternative Dispute Resolution in Court: The
JapaneseExperience, 6 OHIO ST. J. ON DisP. RESOL. 201 (1991); Christine M. Chinkin
&

Romana Sadurska, The Anatomy of International Dispute Resolution, 7 OHIO ST. J. ON

DIsP. RESOL. 39 (1991).

9
OHIO STATE JOURNAL ON DISPUTE RESOLUTION I Vol. 31:1 20161

not demonstrate those qualities.ss

The second way of meeting this global challenge has been to write
about international conflict using U.S. negotiation theories. 59 For
example, scholars have addressed the thorny issues of when to negotiate 60o
how to prepare best, how to manage domestic politicS 6 1 , and when to reach
an agreement. 62 Theories of two-level diplomacy emerging from political
science and issues of when to negotiate with terrorists 63 are just recent
examples of negotiation theory tackling global issues.
But in both of these realms, the input from cultures around the world
is missing. 64 The field is clearly cognizant of the importance of reaching
out to scholars around the world (as shown through the establishment of
the International Association of Conflict Management 5 and the ensuing
journals 6 6). After the Fieldbook was published, one of the most salient
critiques was that the book was still rather Western and particularly U.S.-
centered.67 And it was true-we had authors from the United States,
Britain, Australia, and Israel, but these were all Western understandings of

" Roy J. Lewicki, Teaching Negotiation: The State of the Practice, in HANDBOOK OF
CONFLICT MANAGEMENT RESEARCH 493 (Oluremi B. Ayoko et al. eds., 2014); LEWICKI,
SAUNDERS & BARRY, supra note 49.
s9 See INTERNATIONAL DISPUTE RESOLUTION: VOL. III OF COMPLEX DISPUTE
RESOLUTION (Carrie Menkel-Meadow ed., 2012) (a collection of essays on the
subject).
60 ROBERT MNOOKIN, BARGAINING WITH THE DEVIL: WHEN TO NEGOTIATE, WHEN TO
FIGHT (2011).
61 Andrea Kupfer Schneider, Public and Private InternationalDispute Resolution, in

THE HANDBOOK OF DISPUTE RESOLUTION (2005) at 442-43; Robert Putnam, Diplomacy

and Domestic Politics: The Logic of Two-Level Games, in DOUBLE-EDGE DIPLOMACY,
INTERNATIONAL BARGAINING AND DOMESTIC POLITICS (1993).
62 See, e.g., Andrea Kupfer Schneider, The Day Afier Tomorrow: What Happens Once
A Middle East Peace Treaty is Signed?, 6 NEV. L.J. 401, 401-20 (2005).
61 Michael Fowler, The Relevance of PrincipledNegotiation to Hostage Crisis, 12

HARV. NEGOT. L. REV. (2007).

6 It appears we get more parenting advice from the French than negotiation advice
(see, e.g., PAMELA DRUCKERMAN, BRINGING UP BEBE (2012)) and have not really paid
attention to any theories of negotiation coming from Italy since Machiavelli.
65 INTERNATIONAL ASSOCIATION FOR CONFLICT MANAGEMENT, http://www.iacm-
conflict.org (last visited June 17, 2015).
66 See generally THE INTERNATIONAL JOURNAL OF CONFLICT MANAGEMENT, THE
NEGOTIATION AND CONFLICT MANAGEMENT RESEARCH JOURNAL, and the INTERNATIONAL
NEGOTIATION JOURNAL.
67 Michael Wheeler, Integration, Not Fractionation,DISP. RESOL. MAG. 33-35 (2006)
(reviewing THE FIELDBOOK, supra note 21).

10
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

conflict.
An obvious way to find scholars from around the world is to travel to
them rather than expect their work will make it into English language
journals. Building on the interdisciplinary work already done with
Fieldbook, some scholars used the Rethinking Negotiation Teaching series
of meetings and books to go overseas. Using three meetings to move
further from the U.S.-in Rome, Istanbul, and Beijing-negotiation
scholars produced four books that demonstrate the need to integrate
international thinking. 6 For example, when presenting on gender
differences in negotiation in Istanbul, it was crucial to recognize the
difference in cultures and law that define the problem.69 Not surprisingly,
advice we might give for dealing with a particular situation in the United
States would be different if we were in Turkey.7 0 At the meeting in Beijing,
the difference in how deception in the negotiation was handled by U.S. law
students versus their Chinese counterparts was fascinating. The resulting
book chapter-written with two Chinese co-authors-explores where both
legal and philosophical differences would result in different expectations
and different behaviors.71
The international and cross-cultural challenge is an understandable
one. 72 Most of us are limited to reading in our native language and
interacting with those scholars who are at the meetings we attend.
Growing up in a culture shapes our thinking about the processes and
dynamics by which negotiation occurs, and hinders our intuitive

68 CHRISTOPHER HONEYMAN, JAMES COBEN & GIUSEPPE DE PALO, RETHINKING

NEGOTIATION TEACHING: INNOVATIONS FOR CONTEXT AND CULTURE (2009); VENTURING
BEYOND, supra note 20; CHRISTOPHER HONEYMAN, JAMES COBEN & NOAM EBNER,
ASSESSING OUR STUDENTS, ASSESSING OURSELVES: VOLUME 3 IN THE RETHINKING
NEGOTIATION TEACHING SERIES (2012); CHRISTOPHER HONEYMAN, JAMES COBEN,
ANDREW WEI-MIN LEE, EDUCATING NEGOTIATORS FOR A CONNECTED WORLD: VOLUME 4
IN THE RETHINKING NEGOTIATION TEACHING SERIES (2012).
6 Andrea K. Schneider, Sandra Cheldelin & Deborah Kolb, What Travels:

Teaching Gender in Cross CulturalNegotiation Classrooms, 31 HAMLINE J. PUB. L

&

POL'Y 531-50 (2010).

70 Jean-Francois Roberge & Roy J. Lewicki, Should We Trust GrandBazaar Carpet
Sellers (and Vice Versa)?, in VENTURING BEYOND, supra note 20, at 405-20.
7 Andrea Kupfer Schneider, Ellen E. Deason, Dawn Chen & Zhouxh Xiahong,
Ethics in Legal Negotiation: A Cross-Cultural Perspective, in EDUCATING
NEGOTIATORS FOR A CONNECTED WORLD, supra note 68; LEWICKI, SAUNDERS
&

BARRY, supra note 49.

72 See Carrie Menkel-Meadow, Correspondences and Contradictions in
Internationaland Domestic Conflict Resolution: Lessons from General Theory and
Varied Contexts, JOURNAL OF DISPUTE RESOLUTION 319 (2003).

11
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

appreciation that other cultures may engage the process differently.

Moreover, managing to keep up with the literature in one language (and in
multiple fields as outlined above) is more than enough without trying to
locate and translate the best works in other countries. We know that it is
much easier (and less expensive) to read the newspaper and study a conflict
from afar, than to it is to travel there in person. 73 Finally, there are so many
cross-cultural differences on so many different aspects of the negotiation
process that few people can master the nuances of the negotiation dance in
more than two cultures. Yet we know that these types of exchanges must
be promoted and expanded before we can claim that U.S. negotiation
theory is building on global best practices.

III. TURNING THEORY INTO PRACTICE

The third challenge is to continually push the negotiation theory so that it

is practical and implemented. This is perhaps the original challenge of
negotiation-after all, why would we spend time thinking about the theory if
we could not actually improve the practice of our students? And yet, because
of our success in these classes and the apparent contentment of our students,
we know the least about what is working to meet this challenge. Most
negotiation courses include some combination of theory (conceptual
approaches, empirical studies, and research findings) and practice (role-plays,
applications, and case studies). Yet at the same time, the instructional model
for business and law school negotiation courses has remained
fundamentally unchanged in the last twenty years. The current format
combines a negotiation text and/or excerpted readings on negotiation 7 4
with multiple role-play scenarios, designed and selected to emphasize
effective planning, the dynamics of key strategy and tactics (distributive
and integrative negotiation, power, ethics, individual differences), and
self-reflection papers/diaries/feedback approaches designed to help the
student personalize key learning points and be more skillful in future
negotiations. Few video models or case studies of effective/ineffective
negotiation exist, and, more critically, there has been almost no research
to examine whether these instructional methods do, in fact, improve the

7 Andrea Kupfer Schneider & Katie Lonze, Get on the Plane: Why Understanding
the Israeli-PalestinianConflict is Best Done by Traveling There, 15 CARDOZO J. CONFLICT
RESOL. (2013).
74 See, e.g., ROY LEWICKI, DAVID SAUNDERS & BRUCE BARRY, NEGOTIATION:
READINGS, EXERCISES AND CASES (7th ed. 2014); LEWICKI, SAUNDERS & BARRY, supra
note 49; CARRIE MENKEL-MEADOW, ANDREA KUPFER SCHNEIDER & LELA PORTER LOVE,
NEGOTIATION: PROCESSES FOR PROBLEM SOLVING (2014).

12
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

negotiating effectiveness of students.75

Given that faculty in both law and business schools are smart, curious, and
'professionally skeptical' about almost anything, how can we explain the
ongoing tendency to not question the efficacy of most teaching practice in
negotiation? Here are some initial thoughts:
1. The courses are dominantly built on a highly accepted 'theory' of
experiential learning" that includes elements of theory, 'application of theory
to skills and situation', 'practice', and 'reflection on practice' to improve both
personal skills as well as refine theory. The assumption is that most negotiation
courses-intentionally or unintentionally-address all four components of the
model at one time or another, and by recycling multiple times through this
sequence within the boundaries of an academic course, they constitute an
effective application of the experiential learning model to negotiation
instruction.
2. Students love the course because it is more personally and emotionally
engaging than traditional case study or lecture/discussion, and because the
practicality of the skills being taught is transparently applicable to professional
life. The content is seen by students as immediately relevant because it is a
critical professional skill and life skill. Students recognize that while certain
professional domains (sales; litigation; real estate; labor relations; merger and
acquisition) will require regular and intense negotiations, being an effective
negotiator contributes to career success and success in all types of personal
relationships. As a result, most negotiation courses receive high student
ratings, and demand for the courses remains high year after year. In short,
professors have little incentive to change or even question the efficacy of the
course.
3. Because the course is so continually successful, the instructional
approach requires very little modification from offering to offering; yet the
students experience it as both 'new' and occasionally 'unique.' From the
instructor's perspective, the course format can remain fundamentally the same
from year to year; perhaps only by interchanging a few of the role-plays and
as long as past students do not cross-share simulation materials, the process
will continue to be successful. From the student's point of view, in spite of the
fact that many of the scenarios appear to be 'obvious' in terms of necessary
behaviors and likely outcomes, one of the most enlightening parts of a course
can be the unpredictable behavior patterns and surprise outcomes that result.
Moreover, most business and law students are competitive by nature; the role-
plays and simulations engage their 'real' competitive dispositions in ways that

" Cf Hal Movius, The Effectiveness of Negotiation Training, 24 NEGOT. J. 509

(2008); Lewicki, supra note 58.
6 David Kolb, Management and the Learning Process, in ORGANIZATIONAL
PSYCHOLOGY: A BOOK OF READINGS (David Kolb et al. eds., 1974).
13
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

sometimes help, but also can impede their effectiveness, and hence broaden
their perspective about how to achieve the results they desire.
4. Finally, at least in the business arena, doing 'research on teaching'
(i.e. is the dominant instructional paradigm really working, effective, etc.) is
far less likely to be rewarded by university promotion and tenure committees
than laboratory testing more "rigorous" (but also more likely obscure) points
about a specific negotiation strategy, tactic, cognitive bias or perspective. As
a result, there is remarkably little research on whether the existing paradigms
'do what they are purported to do'-i.e. effectively develop new and lasting
negotiation skills in students.
These elements actively feed each other as generations of students
experience the course, and create a powerful legacy that emphasizes the
importance of taking it as part of one's graduate education. Comparable but
weaker legacies are created by students in undergraduate-level courses and in
executive education seminars.
And yet we know that it is incredibly complex to develop effective
practitioners; best practices for teaching are not yet defined." The next
challenges ahead are in what we teach (as outlined above in the earlier parts
of this essay) as well as how we teach negotiation courses.
We should not, however, assume that the who of our teaching is not
equally important for this particular challenge of making negotiation theory
practical. In fact, the changing audience of negotiation theory might explain
some of the challenges listed above in the cross-cultural discussion.
Machiavelli had great impact not only from the strength of his words but
because he wrote to the most powerful ruler of the day in a language that
educated men spoke.78 Two hundred years later, when every diplomat spoke
French, de Callieres could be read by everyone who mattered.79 Even fifty
years ago, the target audience for political scientists writing on negotiation8 o
was far more homogenous-white, male, affluent, and well-educated-than
the audience for negotiation is now. This diversity of our current student

n Christopher Honeyman, Scott H. Hughes & Andrea K. Schneider, How Can We

Treat So It Takes?, 20 CONFLICT RESOL. Q. 429-32 (2003); Scott R. Peppet & Michael L.
Moffitt, LearningHow to Learn to Negotiate, in THE FIELDBOOK, supra note 21, at 615-
27; Andrea K. Schneider & Julie Macfarlane, Having Students Take Responsibilityfor the
Process of Learning, 20 CONFLICT RESOL. Q. 455-62 (2003).
78
NICCOLO MACHIAVELLI, THE PRINCE (1988).
79 FRANCOIS DE CALLIERES, ON THE MANNER OF NEGOTIATIONS WITH PRINCES (2010).
8o See, e.g., JULIA CHANG BLOCH, Women and Diplomacy, COUNCIL AM.
AMBASSADORS (2004), https://www.americanambassadors.org/publications/
ambassadors-review/fall-2004/women-and-diplomacy (noting that the diplomatic corps
was without significant numbers of women and minorities well into the 1980's.)

14
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

body-in age, gender, race, and experience-is a benefit to our fields in many,
many ways. And it also means that teaching negotiation needs to take account
of the heterogeneity of the audience.'
As we have written about before, negotiation teachers might benefit from
thinking about their offerings at three levels.82 Analogizing to car repair
shops, we could think about negotiation training as quick repair shops, full
service mechanics, and specialized mechanics. In the quick repair shop, our
training is standardized as a package and the consumer accepts the package as
is. For many of us that have been teaching a long time, our negotiation
workshop-however brilliant-is a quick repair shop where we offer our
standard package to our standard students. (One time trainings or particular
corporate clients might actually get the higher level mechanics as these are
specialized for that customer.)
Furthermore, even as we add more subjects and disciplines to negotiation
theory, the practicality of getting a student to execute optimal negotiation skills
remains a challenge. For this reason, one of us has focused most recently on
outlining key skills for effective negotiators and developing a rubric of best
practices under each of those categories.83 Rather than focus on the theory of
the most effective style or approach to negotiation (where different cultural
assumptions can be made about what is competitive versus cooperative), we
can drill down to the skills that each student should have in their repertoire
regardless of which style they choose. This is one way of translating the theory
of negotiation styles into specific practices.
These five skills are assertiveness, empathy, flexibility, social intuition,
and ethicality. Without a full repertoire of skills, it becomes nearly impossible
to have sufficient style choices. For example, without the ability to empathize,
the "accommodating" style or "collaborating" style are much harder to execute
effectively. The fan below, or negotiation origami 84 , is what a pyramid of the
five skills would like look unfolded. Imagine that the goal is best practices at
each of these five skills (the bigger dot). And that, in reality, we are likely
using a mix of minimal, average, or best practices in any given negotiation (as
shown in the example below.) With a standard template of skills, students can
start to evaluate and review their negotiation skills for level of expertise in
their multiple interactions.

a Roy J. Lewicki & Andrea Kupfer Schneider, Instructors Heed the Who: Designing
Negotiation Trainingwith the Learnerin Mind, in VENTURING BEYOND, supranote 20, at
10-39.
8 Id
8 Andrea Kupfer Schneider, Teaching a New Negotiation Skills Paradigm,39 WASH.
U. J.L. & POL'Y 13-38 (2012).
8 Id at 35.
15
OHIO STATE JOURNAL ON DISPUTE RESOLUTION [Vol. 31:120161

For example, knowing your Best Alternative to a Negotiation Agreement

(BATNA) is a minimum skill of assertiveness, attaching a reservation point to
that BATNA could be considered an average skill, and figuring out how to
improve your own BATNA while in the midst of a negotiation would be an
example of best practices. This focus on skills and specific actions also makes
it easier for diverse audiences to understand and implement effective
behaviors. We are not assuming a shared vocabulary or homogenous
professional training in order to translate these theories into practice."
Negotiation teachers have been quite successful at enrolling and
encouraging students to build their negotiation skills. The popularity and
ongoing recognition that these skills need to be taught remains consistently
high." Similarly, practitioners regularly write advice books on negotiation
trying to turn their particular success into generalizable negotiation theory,
keeping a popular focus on negotiation theory.87 The challenge for all of us

" See Lewicki & Schneider, supra note 81, at 55-56 (arguing for a base of "core
skills" and micro skill building).
86 Recent calls for a more practical approach
to law school only highlight the
importance of teaching problem-solving skills. See Andrea Kupfer Schneider, Jill Gross
& John Lande, Teaching Students to be Problem-Solvers and Dispute-Resolvers, in
BUILDING ON BEST PRACTICES: TRANSFORMING LEGAL EDUCATION IN A CHANGING
WORLD, at 376-83 (Deborah Maranville et al. eds., 2015). See also ROY STUCKEY ET AL.,
BEST PRACTICES FOR LEGAL EDUCATION (2007).
87
See, e.g., DEEPAK MALHOTRA & MAX BAZERMAN, NEGOTIATION GENIUS (2007);
ADAM GRANT, GIVE AND TAKE: WHY HELPING OTHERS DRIVES OUR SUCCESS (2013).
16
 THE PAST AND FUTURE CHALLENGES OF NEGOTIATION THEORY

moving forward is to continue to unpack what skills are needed for

effectiveness, to test this empirically, and to teach these to students in ways
they can implement the skills.

IV. CONCLUSION

In looking at negotiation challenges both past and future, the field has been
impressive. We have rather successfully integrated other disciplines into what
we teach, have created several effective methodologies for doing so, and seem
to have every intention to continue to do so. Other challenges are harder (and
more expensive.) We need to travel, continue to build connections, meet
others from around the world, and be open-minded to the global expertise that
is out there. In terms of practicality, the testing of what is effective will also
be difficult. More than lab testing of micro-moves, our field is still looking
for ways of identifying and measuring negotiation effectiveness. Luckily,
with symposia and journals such as this, we are sure that this work will
continue to be supported for another thirty years.

17
OHIO STATE JOURNAL ON DISPUTERESOLUTION [Vol. 31:120161

18