We often think of negotiation as a distinct and climactic phase of a dispute. Interactions leading up to the final settlement event are often considered merely as preparation, if that. In litigated cases, we often ignore the litigation as if it was largely irrelevant to the information available and the dynamics in negotiation. I base these observations on my review of law school negotiation texts in a forthcoming article as well as general conversations with colleagues.
I think that this conception of negotiation misses critical parts of the process and thus leads to misconceptions about how it really works and what lawyers really do.
Of course, the settlement events intended to resolve the ultimate disputes are very important and deserve a lot of attention by practitioners, students, and scholars.
