The Simple Reason that Co-resolution Will Work, Plus the Tractor Metaphor

While I can present many arguments and hypotheses as to why the co-resolution structure will have a positive effect on negotiation, there is a simple reason for why this concept will work. The basic reason is that independence between advocates better serves adjudication, while dependence between advocates (as designed in co-resolution) better fits negotiation. This entry will therefore compare the nature of adjudication vs. negotiation and the function of attorneys vs. negotiators in order to arrive at the simple conclusion that negotiation operates better when the advocates have a stake in their continued interaction.

Adjudication is a full comparison by a third party of the evidence and arguments presented by each side in order to determine an objective Truth or just outcome. In order to fulfill this purpose, both parties are allowed the assistance of advocates, and the advocates are prevented from engaging in actions that undermine the adversarial, investigatory nature of adjudication. As a result, advocates must thoroughly oppose each other, conduct and keep their research apart, and maintain the freedom to package their cases in a light most favorable to their party.

In order to motivate full investigation and debate, and also allow for separate research and strategies, legal advocates must maintain complete independence from their opposition. One of the most protected rules of legal ethics, strict independence is so far ingrained in advocacy that no one argues its value in either direction. However, while this trait clearly enhances the overall functioning of adjudication, over 90% of legal cases settle in negotiation between the attorneys. And because they are geared towards debate, attorneys have difficulty in negotiation—they play games with strategy, use mere intuition in “feeling out” the other side, can only trust that the other side is working against them, and keep the negotiation on a simplistic, linear level.

These problems occur because negotiation and adjudication are very different processes. While adjudication is a backwards-focused debate-and-decision procedure, negotiation is a voluntary coming together of both sides into a mutual outcome, and it is therefore more cooperative in nature. When each process is at its best, adjudication indicates the deserving party, and negotiation allows both sides to get their most desired outcome in light of their conflicting needs. Negotiation under independent advocates is less an exploration of optimal solutions and more of an unregulated back-and-forth over what the parties deserve.

Just as it is well-known and intuitive that independence between advocates best serves the adjudication forum, it is similarly accepted that a relationship between negotiators enhances the interaction. Opposing advocates that foresee or have an interest in continued interaction with each other tend to have more fluid, comfortable, and productive negotiations. This is because having a relationship aligns the negotiators’ strategies and allows them to focus on using their knowledge and understanding of their separate sides to explore an optimal, mutually satisfactory outcome.

Therefore, because it is clear and obvious that independent advocates were specifically designed for adjudication, that negotiation and adjudication are different processes, and that relationships across the table increase the quality of negotiations, it should not be presumed that negotiators should offer their services independently. Despite the well-known effects of independence and dependence on the negotiation forum, when parties seek assistance in negotiation they continue to bring in independent negotiators.

This is the simple reason that co-resolution will work—it offers all of the benefits of independent counsel (loyalty, personal assistance) with the advantages of an across-the-table relationship (cooperation, trust). The co-resolution structure basically takes the elements of legal negotiation that were designed for the courtroom and brings them to better fit a negotiated interaction.


The Tractor Metaphor

While the following argument deserves to be a separate post, it works best as a supplement to the discussion of independent vs. dependent advocacy.

Adversarial litigation is accurately represented as a linear battle between the opposing parties. On any given issue, there are two possible adjudicated results, a negotiated compromise will fall at some midpoint along the variables in question (money, time), and each advocate pulls for an outcome that favors their side. Under the simple limitations of this forum, so long as these advocates pull in opposite directions skillfully and diligently, the process will be thorough and the end result will be just.

Advocates in adversarial adjudication are therefore two tractors, connected by a chain, playing tug-of-war. In order to ensure that each pulls to their full ethical extent, each tractor is provided and run by a different company. This arrangement motivates each tractor to constantly pull hard in order to attract business and makes it functionally impossible for the tractors to collude or gain unfair advantage. The use of independent tractors therefore makes sense in a linear contest between the two sides.

Interest-based negotiation is an entirely different creature from adversarial litigation. Instead of comparing diametric arguments and accounts to discern which side was correct, in negotiation, both sides discuss their aspirations and capabilities in a voluntary effort to arrange their joint or concerted future actions. The process is not a controlled clash of differing perspectives, but rather an endeavor to construct a shared framework for both sides.

Advocates that personally assist parties in negotiation are therefore two tractors that work together in one construction project. Despite the level of cooperation needed in this undertaking, both parties typically seek and provide tractors run by different companies. As a result, the tractors may not be compatible or able to function in a coordinated manner.

This accurately illustrates the use of independent advocates in negotiating a deal or mutual resolution to a conflict. Using advocates that have no relationship will make cooperation difficult and dangerous, place a number of obstacles in the way of smooth dealings, and limits the range of possible solutions. Meanwhile, because the parties must agree to a negotiated outcome (unlike a litigated outcome), a relationship across the table does not obstruct either advocate’s subservience to the party they negotiate for. Thus, while independent advocates fit into the purpose and structure of adversarial litigation, advocates that can comfortably work together and trust each other will conduct more productive and mutually beneficial negotiations.