Answer to Question 1
In disputes where issues are clear-cut, the stakes are well defined, where one party is
significantly more powerful than the other, and/or the parties have no ongoing relationship,
a competitive approach can quickly bring a dispute to its inevitable conclusion.
Distributive/competitive negotiation often results in large monetary awards for clients,
especially in cases where there is a finite amount of money to be divided up. In addition, a
competitive negotiator may be better prepared to deal with the competitive tactics used by
the other side and is less likely to be rattled or misled by such tactics. On the other hand, the
competitive negotiator relies on tension, fear, and threat that are largely uncontrollable. A
competitive negotiator is less likely to thoroughly analyze the merits of the dispute and
identify all possible solutions. Therefore, he or she risks obtaining an outcome that is less
than what could have been attained with more cooperative tactics. In addition, a competitive
style impedes the flow of important information between the parties, which can result in a
loss for one or both parties. It also tends to destroy any hope of an amicable ongoing
relationship between the parties.
Cooperative negotiating tends to achieve settlements that are satisfying to all the parties.
This is especially helpful in disputes that involve several issues, a variety of possible
solutions, and where the parties will have an ongoing relationship that they wish to preserve.
On the other hand, a cooperative negotiator may be less likely to deal effectively with
competitive tactics from the other side and, therefore, give up too much. The cooperative
negotiator also risks giving away too much information in the spirit of cooperation, thus
inadvertently escalating the dispute and weakening the client's position. Cooperative
negotiation requires more skill than competitive negotiating, and also takes more time and
money in that the negotiator will thoroughly analyze the case and identify all possible
options.
Answer to Question 2
If you ever see or hear any instance of impropriety in the law firm or office in which you work, always discuss the matter with your supervising attorney. You would also want to locate the ethical rules governing lawyers in your state.
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