The aim of Integrative and Distributive Bargaining in Mediation Advocacy, is an agreement that will result in the participants [‘P’s] being better off than they would be if there is a trial.

NB in the Mediation of a Contentious Probate Dispute – ‘Trial’ = each P’s BATNA (‘Best Alternative to a Negotiated Agreement’).

In Distributive Bargaining the agreement will create a single, definite amount of benefit or ‘surplus’ to be divided amongst the P’s, i.e. the net estate assets, in the form of assets of a global value, or both.

It is a zero-sum, win-lose game in which the P’s must divide an estate pie of a fixed size.

In Integrative bargaining, the amount of the benefit potentially available to the P’s, i.e. the size of the ‘pie’ is not fixed, but variable, i.e. it can be expanded e.g. through tax-efficient post-death re-structuring.

So, integrative bargaining is a non-zero sum game, which gives rise to opportunities for ‘win’- ‘win’ – ‘win’ outcomes, i.e. ‘solutions’, see the Mediation Advocacy section of my book, the 2nd Edition of the Contentious Probate Handbook ‘ (published by the Law Society in 2025) – which is pictured in the window of Wildy & Sons Bookshop in Lincoln’s Inn, in the image below.

Opportunities for integrative bargaining are often unrecognized and unexploited, resulting in the P’s each ending up worse off than would otherwise have been the case.

The failure to spot and exploit these opportunities may be the result of how solicitors and barristers are taught about negotiation, i.e. because this ingrains an ‘I’m right – You’re wrong and I can prove it’ approach to negotiation, which is historically associated with ‘male modes of moral reasoning. Or it may be the result of the negotiator’s dilemma in which the open and cooperative tactics thought appropriate to integrative bargaining are systematically exploited and driven out by more combative tactics generally associated with distributive bargaining – starting high, conceding slowly, concealing and misrepresenting one’s own interests, arguing coercively, threatening, and bluffing.’ (‘What’s Fair – Ethics for Negotiators’ (A Publication of the Program on Negotiation at Harvard Law School) by Carrie Menkel-Meadow and Michael Wheeler, page 31).

I am currently reading ‘What’s Fair’ as background research reading for my forthcomiong book – ‘Mediation of Cultural Heritage Disputes.’