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Cardozo Journal of Conflict Resolution

Abstract

The communitarian conception of bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and fully, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. They "connect" as persons and in the process convert what in lesser hands might be a form of stylized combat into a kind of joint venture, and sometimes even a lasting friendship. This, in turn, takes the hard edge off their disputing and makes it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. One might even say that communitarian bargainers create a kind of dispute-settlement Nirvana (or Eden), where self-interest is not naked, force is not brutish, entitlement claims are not legalistic, and everyone acts in the spirit and to the limits of her or his social potential. This is a wonderfully inspiring story, full of nobility and grandeur, and it would be a source of great comfort in an unfriendly and fractious world if it were true. But sadly, the assumptions communitarian bargaining theory makes about legal disputing are too idealized to serve as guides to real-life bargaining most of the time, and its foundational dogma, that bargaining distributions are natural, self-evident and complementary, is based on a vision of humans before the fall. The communitarian view is more mythic than data-based, appealing mostly to those who have little direct experience with bargaining practice itself, those who have never entered the fray so to speak, or what's worse, have entered it, done badly and now want to change the ground rules so that they will do better in the future.

Disciplines

Dispute Resolution and Arbitration | Jurisprudence | Law

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