I. Introduction
Negotiation lies at the heart of legal practice — yet even highly trained negotiators regularly reach suboptimal agreements. This problem is widespread. Seventy percent of major M&A deals fail to close or fall short of parties’ aspirations. Almost forty percent of international peace agreements unravel within five years. Some estimates suggest up to twenty-seven percent of criminal defendants who plead guilty in America may be innocent. Even in personal relationships, where parties often share strong incentives to cooperate, approximately half of U.S. marriages end in divorce. What drives this problem and how can we begin to overcome it? While there is no single answer, three factors are too often overlooked by legal practitioners: identity, emotion, and psychological biases.1 These factors interact within a negotiation system that requires constant prioritization, a systemic dynamic that remains undertheorized. Negotiation shortcomings often stem not from a lack of tools, but from the failure to effectively prioritize rational, emotional, and identity-based interests within a system pervaded by psychological biases.
Despite the increase in negotiation training at law schools over the past half century, negotiation scholarship is often confined to specialized journals, separate from mainstream legal scholarship. This sequestration is understandable given the many important areas of substantive law and procedure to be covered, but also surprising for a profession that uniquely integrates practice and scholarship. Indeed, the entire U.S. judicial system depends on negotiation: Ninety-eight percent of federal criminal cases result in negotiated plea bargains and a similarly high percentage of civil suits are settled prior to trial. This essay, though brief, takes a step toward bridging the law journal–negotiation divide and offers a framework for understanding how traditional negotiation considerations interact with identity, emotion, and psychological biases within negotiation systems.
II. Understanding Identity and Emotion in Negotiation
What is negotiation? Negotiation can be defined as any time we are “trying to influence [someone] to do something” or, more broadly still, any “purposive interaction.”2 This means that all people negotiate daily — from convincing friends and colleagues to like them to seeking raises at work, casting a vote, and choosing where to eat for dinner. Lawyers engage in these informal negotiations but are also more likely to regularly participate in formal negotiations, from client fee agreements to corporate deals to litigation. Recognizing that one is negotiating is the first step toward improving the odds of satisfying one’s interests in each negotiation because it enables one to draw upon negotiation tools and best practices. The foundational tools of negotiation — including choosing an integrative negotiation approach over distributive bargaining, differentiating interests from positions, and developing options and alternatives — were first popularized by Professor Roger Fisher and William Ury’s Getting to Yes in 1981 and subsequently expanded on over the past forty-five years.
Despite using these tools, lawyers and non-lawyers regularly reach suboptimal agreements. So, where do traditional tools of negotiation fall short? As I first wrote in 2020, negotiation scholarship and instruction have often overlooked two interrelated features of negotiation: the importance of emotional and identity-based interests and the challenges of prioritization at different levels of the negotiation system. Six years later, this largely remains the case.3 Although many lawyers receive negotiation training in law school or at their law firms,4 these programs have only recently begun to integrate content on the importance of considering these factors. Where they do, these topics are often touched on briefly, at least relative to their complexity and depth, and may not be situated fully alongside the traditional negotiation.5
Read the full post at
https://harvardlawreview.org/blog/2026/04/systemic-prioritization-in-negotiation-and-the-law/
