I skipped yesterday compressing the day before judging the ABA Negotiation Competition over at the law school. This year's problem involved college athletic-department compliance—the usual payoffs, academic fraud, asshole coach, etc. What I found a little bit disturbing was the imbalance between the two sides. In the "real world," there often is an imbalance; but this was supposed to be a training exercise, open to 1Ls. In training where both sides may well be complete novices, the training opportunities are maximized by giving both sides substantial strengths and substantial weaknesses. Further, the very nature of this kind of dispute does not lend itself to single-session negotiation and compromise; more typically, self-reported infractions take 8–10 weeks to reach a resolution.

   Nonetheless, the students did pretty well in most respects. Nobody turned into a hard-ass macho idiot unwilling to compromise on anything after drawing a line in the sand. However, there was one problem that four of the six teams I observed had that was preventable: failure to (internally) state a clear objective. This is not just a management issue; it is a classic problem in military strategy—which, as a career military officer before I became a lawyer and student of history for longer than that, influences my thinking extensively. The linkage is not very subtle; warfare is the high-spectrum means for resolving disputes between states, while law is the low-spectrum means for resolving disputes between individuals and organizations that are not states. I have even used the "spectrum of conflict" in teaching ROTC cadets the relationships among different parts of the disciplinary system, because the spectrum of conflict was something that they already understood—and, the deeper I look into it, the better the analogy becomes.

   A hint for negotiators, whether in "competitions" or the real world: Walk in with a clear, comprehensive list of your client's "worst case" acceptable position for every element that might come up in the negotiation. As you reach an agreement (or agree to disagree) on an element, annotate that right on the list. Take the time to review your list before any time constraint (artificial or real) ends negotiations to ensure that you have at least discussed every element, except in the rare case that it is in your client's best interest for negotiations to be silent on that element. The two teams that appear to have done this stood head and shoulders above the other four last night.