No one will doubt the importance of negotiating skills to the practicing lawyer; surely lawyers negotiate more often than they try cases, draft documents, or exercise any other single lawyering skill. There may be some doubt as to whether such skills can be "taught;" a large amount of intuitive skill goes into the make-up of a good negotiator, and, as in litigation, a lot depends on personality and other factors that are impossible to teach. However, there is increasing recognition that the time has come for lawyers to recognize that negotiation is a special field in which it is possible to acquire special competence. Recent experience at this and other law schools has demonstrated that a course or a seminar in this area can familiarize students with many of the typical techniques used in negotiation settings, create a heightened awareness of the negotiation process and of the lawyer's role in personal manipulation, and create an appreciation of the importance of irrational forces in the negotiation process, including some understanding of the reaction of others to one's own behavior in the negotiation setting. In addition, the course can provide a valuable opportunity to receive an objective evaluation of one's own negotiating skill, both from opponents and from third parties.
As in the past, enrollment in this course is limited to 16 students. The course will meet once a week, in three-hour sessions. There will be no final exam, and grades will be determined in part on the basis of the results of the negotiated problems, and in part on the basis of the various written exercises.
We will begin with a consideration of some theoretical materials designed to introduce the nature of the bargaining process. The focus of the semester, however, will be a series of simulated negotiations between teams of students, concerning a common contractual problem (such as a sale, contract of employment, lease, settlement of a lawsuit, etc.). These negotiations will be videotaped and later discussed by other members of the course, the instructor, and perhaps some outside visitors. Some of these negotiations will culminate in drafting exercises, and the different drafts will be distributed and compared.
In past years I have brought in both lawyers in practice and clinical psychologists to talk to the class during the course of the semester.