As Art reported, William Mitchell and Hamline Law Schools plan to merge.

Best wishes to all our friends at both schools. Both have wonderful DR colleagues and have been great innovators in legal education.

Hopefully, people there will like the new arrangements. Of course, even positive change can be stressful and some people may not experience this as positive change. Most obvious are people who lose their jobs. Some people who retain their jobs may find that their jobs have changed, they have less control and status, relationships with school leaders and colleagues are not as good, the quality of education suffers in some ways, etc. Students may find that their expectations are disrupted. So I don’t assume that implementing this merger will be easy or positive for everyone and I hope that all the stakeholders do as well as possible under the circumstances.

In his good-natured joking, Art apologized for using the traditional “win-win” paradigm to describe the negotiation. Although he was joking, this situation provides a useful opportunity to illustrate some problems with the traditional paradigm.

First, part of the problem is that we don’t have a generally-recognized alternative language for talking about negotiation. So it is completely understandable to rely on familiar concepts even when we think that they’re problematic, especially in casual conversations. However, these concepts do create real problems when we really do need to rely on them for clarity and shared understandings in scholarship, teaching, and practice.

What does “win-win” mean? It could simply mean that both sides gained some value as compared with the situation if they didn’t reach agreement. It implies that both sides gain substantial value, possibly roughly equal amounts of value.

In this and other negotiations, one could analyze the extent to which this is the case. Since the parties here were organizations, one could consider this for various constituencies of each party such as the governing bodies, top administrators, faculty, staff, and students, among others. Some may have “won” more than others – and some may have “lost.”

Often, “win-win” is a shorthand for a general process called by various names such as problem-solving, integrative, principled, interest-based, and cooperative negotiation. People often use these terms referring to a combination of various elements such as a process of explicitly identifying parties’ interests and options for satisfying those interests, seeking solutions that satisfy both parties’ interests, treating each other respectfully, and/or restraining the use of power.

In the Mitchell-Hamline situation, how much did the negotiators use an interest-and-option process as opposed to relying on exchanges of counteroffers? How much did each side try to maximize the joint interests of both sides (rather than maximizing their partisan interests, offering just enough for the other side to accept as preferable to its BATNA)? How much did the parties engage in respectful, cooperative discussion as opposed to hard bargaining based on determined use of power?

Even if the result of the negotiation did create substantial value for both sides, that doesn’t answer the preceding questions. This is especially significant considering that the “off-again, on-again” negotiations extended over a period of time and presumably involved quite a number of negotiators.

In sum, I suspect that this may not have simply been a win-win negotiation – or that using any of the traditional models would neatly fit this negotiation. Indeed, although I am not a gambling man, I would bet a nickel that the traditional models don’t help very much in understanding the process overall.

The (two-)model structure of negotiation theory has been helpful in moving us forward in recent decades. But simply saying that something was a interest-based or positional negotiation not only doesn’t convey things clearly, but it actually can be misleading. I think that this example illustrates why we, as DR experts, need to refine our conceptual tools for the future, as I have argued recently.

John Lande is the Isidor Loeb Professor Emeritus and former director of the LLM Program in Dispute Resolution, at the University of Missouri, School of Law. He received his J.D. from Hastings College of Law and Ph.D in sociology from the University of Wisconsin-Madison. He is also an avid writer and contributor to Indisputably.org