Document Type
Article
Publication Date
12-2025
Journal Title
Harvard Negotiation Law Review
ISSN
2169-8015
Abstract
When proponents initially urged the courts to institutionalize mediation for the resolution of general civil cases, they argued that the procedure would be superior to trial—and also to lawyers’ settlement negotiations—in terms of parties’ exercise of self-determination, satisfaction with outcomes, and opportunity for voice. These claims, however, rested on certain assumptions, particularly regarding the implementation of mediation and lawyers’ settlement negotiations. In mediation, the parties were to take center stage, with the mediator assisting them by facilitating their communication and negotiation so that they could reach a customized resolution. Lawyers’ settlement negotiations in general civil litigation, meanwhile, were assumed to be lawyeronly affairs that excluded the clients. Since then, scholars and other observers have often written about how much mediation has evolved. In the contemporary legal landscape, one of the models used frequently in the courts (and by private providers as well) is an evaluative, lawyer-and-caucus-dominated procedure. The evolution of lawyers’ practice in settlement negotiations has not received commensurate attention. Data has begun to suggest, however, that a substantial percentage of these negotiations may include the clients. We propose that this “client-inclusive” approach to lawyers’ settlement negotiations might outperform—or at least match the performance of—the lawyer-dominated evaluative model of mediation, using many of the same criteria initially used to promote mediation. Paradoxically, just as arbitration has evolved into the “new litigation” and mediation has become the “new arbitration,” lawyers’ client-inclusive negotiations could represent the “new mediation.” If this is so, courts should also evolve by considering the use of “client-inclusive” negotiations to satisfy judicial orders to participate in mediation and law schools should prepare students to competently implement this procedure.
First Page
1
Last Page
51
Num Pages
51
Volume Number
30
Issue Number
1
Publisher
Harvard Law School
Recommended Citation
Nancy A. Welsh & Donna Shestowsky,
Lawyers' Client-Inclusive Negotiations: The "New Mediation"?,
30
Harv. Negot. L. Rev.
1
(2025).
Available at:
https://scholarship.law.tamu.edu/facscholar/2323
File Type
Included in
Courts Commons, Dispute Resolution and Arbitration Commons, Legal Profession Commons, Legal Remedies Commons, Litigation Commons