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Keywords:

  • negotiation;
  • pedagogy;
  • distributive bargaining;
  • Thomas-Kilman Conflict Mode Instrument;
  • value claiming

In a world of problem-solving lawyering, principled negotiation, and integrative bargaining, to describe a negotiation as “distributional” may strike some as heretical. Still, we disserve our students if we ignore distributional bargaining altogether. Unfortunately, many law students who are drawn to negotiation classes bring with them a fundamental discomfort with claiming value. Contrary to the stereotypes that attribute aggression and “sharp practices” to lawyers, many law students struggle to become more assertive.

The Thomas–Kilmann Conflict Mode Instrument (TKI) is one tool that I have found can help raise students' awareness of, and comfort with, the reflexive responses to conflict that can impede their attempts to claim as well as create value in negotiation. The insights students gain from taking the TKI can be quickly put to use in the next negotiation role play. Although it may help students realize their dominant response to conflict, the TKI highlights that no single approach to negotiation is always best. Thus, the TKI can both encourage the reticent to claim more value in negotiation and suppress the seemingly insatiable appetites for value claiming that drive other students.

When administering the TKI, I encourage students to learn at least four major lessons:

  • 1
    A negotiator has a choice in resolving the dilemma between value claiming and value creating. We are not just stuck with our reflexes.
  • 2
    Still, it is good to know what our reflexive response to conflict is likely to be so that we are more mindful of the choices as we make them.
  • 3
    Departing from reflexes requires energy: preparation, planning, mindfulness, and conscious effort.
  • 4
    Adaptability is desirable. A well-integrated negotiator might move from one TKI “type” to another as a negotiation progresses.

In this article, I seek to give a very brief overview of the ways I have used the TKI to convey these lessons, increasing students' comfort with, and management of, value claiming. To this end, the article will describe the TKI, explain how I administer and debrief the students' encounter with it, and point out some potential pitfalls of this process.