Notes on Negotiation

Source: Paul J. Zwier of Emory Law School on Legal Negotiation

https://www.youtube.com/watch?v=B0L7TMcDDAU
(Advanced Negotiation Part I by Paul J. Zwier of Emory Law School
on Legal Negotiation)

Negotiation can be in a transactional setting or in a litigation setting

In the book of Jim Lopez, he mentioned that lawyers have a role to play in at least 2 crucial
negotiation schemes, namely :
1) dispute or litigation settlement
2) transaction –planning or preventive law negotiation

Interdisciplinary approaches to studying negotiation :

 Game Theory – treats negotiation like a battleship; anticipate moves; it sometimes
challenges our intuitive assumptions[ explores the difference between rational behavior
and other non rational behavior]
 Economic theory – a dispute about economic values ( supply and demand) relationship
between the parties; informs us how we put value on things for purposes of trying to reach
a resolution
 International Politics – looks at how diplomats solve international disputes; overcome re
 Ethnic differences –
 Gender differences
 Social psychology – is it an issue of identity, a matter of principle, or is it a matter of
biasing impact

What is a Negotiation Strategy?

It is an overall approach one takes when one exchanges proposals and counter-proposals with
another person when negotiating a settlement to a conflict.

What is a Negotiation Tactic ?

It is a particular action used to implement a strategy.

Are you an adversarial bargainer or also called a position based bargainer versus a problem
solving bargainer or interest based bargainer?

Lawyer Negotiation Strategies ( The two basic types of Negotiation Strategy)

Adversarial negotiation
strategy
: Zero-sum strategies; parties
battle over fungible items set lawyer identifies the
along a continuum.
It is akin to bargaining in a
market place. It is like taking underlying needs and goals
offers back and forth to see
their bottom line. Only one
will expect to win.
Problem solving negotiation
strategy
Non zero-sum strategies;
underlying needs of parties
and searches for solutions to
satisfy essential goals of all.
Problems are seen as having
to have a win- win solution.
( Finding a win-win solution.
This is the language of
international negotiation.
One checks the relationship
needs between the two and
more specifically the following
:
1) underlying needs and
goals
2) information gathering
3) check what are shared
needs, independent needs,
conflicting needs.
OUTCOME WIN – LOSE SITUATION WIN-WIN SITUATION
MOTIVATION Individual gain Joint and individual gain
INTERESTS Different Different but not always
opposite
RELATIONSHIP Short-term Longer or short term
ISSUES INVOLVED Single Multiple
ABILITY TO MAKE TRADE Not flexible Flexible
OFFS
SOLUTION Not creative Creative

Other authors refer to adversarial negotiation strategy as DISTRIBUTIVE NEGOTIATION and

problem solving negotiation strategy as INTEGRATIVE NEGOTIATION.

Combining Style and Strategy

Adversarial and Problem solving strategy
Competitive and Cooperative Styles
Adversarial Strategy Problem Solving Strategy
Competitive style Rigid and risky Limited needs and solutions
Cooperative style Concession and Compromise All needs and solutions

Style – refers to the tone of your negotiation, e.g competitive is more arrogant vs. the cooperative
style which is more the warmer type.

In the book of Jim Lopez, he mentioned of two major styles of unassisted negotiation are as
follows :

a) combative negotiator is similar to the competitive style - emphasizes only his own gains at the
expense of the other and employ hardline tactics. This is good only for one shot deals .
b) conciliatory negotiator is similar to the cooperative style. (See the book of Jim Lopez)

It is also possible that one is using the cooperative style with an adversarial strategy to fish for
information; thus, he may be in bad faith. And later he shifts to the competitive style, using
adversarial strategy.

Be wary of the information that you give. One should be wary of whether the person negotiating is
acting in good faith or not,regardless of whether he is adopting the cooperative style with an
adversarial strategy or a cooperative style with a problem solving strategy.

If one is in a deadlock, then REMEMBER THE ORANGE : (see the video)

1. Postions vs. Underlying needs (Ask about underlying needs and goals vs. position)
2. International Problems solving
3. Building trust during the process ( look for shared needs and goals by listening well)

In the book of Jim Lopez, he cited Leonard Koren and Peter Goodman who formulated the
following deadlock breaking techniques in “The Haggler’s Handbook (1991):

1) Be positive and don’t be put off by the word “no”

2) Agree on easier items first and skip over the points that are bogging you down and come
back to them late
3) Emphasize shared goals, get back to common ground and start building up again.
4) Reduce complexity, breakdown complicated negotiations into pieces and solve each piece
one at a time,
5) Brainstorm with your opponent to generate various alternatives,
6) Fine tune with your agreement so that there is something you can find acceptable

3 Stages of Negotiation :
1) Assessment stage
2) Persuasion stage
3) Exchange stage

Assessment Stage :(to check the other side’s true BOTTOMLINE IS

 Key Questions : Meaning, trustworthiness and valuation
 Control of critical information correlates to negotiation success regardless of strategy
  Negotiation information includes all of the historical and intentional facts
 To control negotiation lawyer must GET, GIVE and GUARD critical information

Come up with the following matrix :

INFORMATION
Need Protect Give

Moral Intuition and Settlement

 Character Flaw – Apology and Punishment
 Reckless neglect – Compensation + Apology
 Inadvertent neglect – Compensation
 Accident – Honest Mistake -- Apology

To Get Needed Information Follow the Funnel Technique

1. Begin each topic with a broad, open-ended questions

2. Move slowly down the funnel with slightly more narrow questions. ( starts with Did you
questions)
3. Conclude the topic with leading questions to confirm details. ( great ways to summarize the
information)

To get information, it is essential that one learns to be an active listener :

 Pay attention and use encouragement probes
 Focus on visual and aural non-verbal communication
 Ask active listening follow-up questions

Responding to Opponent’s Probes for Sensitive Information :

 Honest answer – May provide opponent with leverage to use against you
 Misrepresentation – Significant ethical, liability and credibility problems
 Evasion – Blocking the other side’s probes is the least risky alternative

Protect Information by Blocking Opponent’s Probes

 Answer a question with a question
 Over or under answer a question
 Answer another question
 Rule the question out of bounds
 Ignore the question and keep on talking

Margaret Neale : Getting a What You Want or Getting a Good Deal

Goal of a negotiation is to GET A GOOD DEAL

4 Tips in Successful Negotiation (To get more of what you want )

1. Assess the situation: Do the benefits outweigh the costs ?

2. Prepare : What are my interests ? What are your interests?
3. Ask :Engage and share unique information
4. Package ;Bundle alternative proposals
1 Assess the situation: ( check whether you can change the outcome in a way that you are
better off; weigh the potential benefits from the potential cost of negotiating or will the
benefits outweigh the cost)
2 Prepare fornegotiation ( there are 2 aspects in this step : first, understand what my
interests are and what I really need to achieve in this negotiation; second component – I
need to understand the interests and preferences of my counterpart.)
3. Ask and engage with your counterpart( you have unique information and your
counterpart may also have unique information )
4. PACKAGE the issues( Do not negotiate issue by issue, because negotiating issue by
issue is adversarial) When one package the issues, you have the opportunity to trim the
issues. Use IF THEN LANGUAGE

WOMEN AND NEGOTIATION

Expectations drive behavior. If you change your expectations, you change your outcome.
We need to be cognizant of 3 aspects of negotiation.

1) Why am I asking?
2) How am I asking?
3) For whom am I asking?

Women are more effective in negotiation when it is for communal orientation, that is for
others.

1. Men are better off negotiating for themselves.

2. Women are better off negotiating for others rather than for themselves.Women are
better at representational negotiation.

Jim Lopez cited John Patrick Dolan, a lawyer who wrote the book “Negotiate like the
Pros” which cited at least 14 basic and common negotiation tactics.

Dolan said :

Everyone uses these tactics, but that doesn’t mean that negotiations can’t be fair. Some
tactics are acceptable, while others are downright sleazy. Tactics are part of the process,
and you can use them and still maintain your negotiations on an honest level. In other
words, the use of tactics doesn’t necessarily mean tricking or manipulating people.

Some tactics are simply tools to expedite the negotiation process; others are used to take
advantage of the other person. To be successful in sales and business, you must be able
to differentiate between the fair and unfair negotiation tactics so you can use the good
ones to your advantage and deflect the questionable ones. Consider the following ten
negotiation tactics and the methods you can use to deflect them:

Tactic #1: The Wince or also referred to as The Flinch

The wince can be explained as any overt negative reaction to someone’s offer. For example, you
might act stunned or surprised when your negotiating counterpart names their terms. This tactic
tells your counterpart that you know your limits, which isn’t under-handed or dishonest. And
wincing at the right time can potentially save you thousands of dollars. Keep in mind that when
deals are negotiable, your counterpart will start high.

Flinching or Wincing is showing a strong negative physical reaction to a proposal. Common

examples of flinching are gasping for air, or a visible expression of surprise or shock. The flinch
can be done consciously or unconsciously. Flinching or wincing is showing a strong negative
physical reaction to a proposal. Common examples of flinching are gasping for air, or a visible
expression of surprise or shock. It can be done consciously or unconsciously.

Tactic #2: Silence

In the negotiation process, silence can be your strongest tool. If you don’t like what your
counterpart has said, or if you’ve made an offer and you’re waiting for a response, just sit back and
wait. Most people feel uncomfortable when conversation ceases, and they start talking
automatically to fill the void. Almost without fail, your counterpart will start whittling away his or her
position when you use this tactic.
Tactic #3: The Good Guy/Bad Guy Routine or Gambit
This sleazy tactic is often used in movies, where two detectives are interrogating a person who’s
just been arrested. One detective seems unreasonable and inflexible, while the other tries to make
it look like he or she is on the suspect’s side. This tactic is designed to get you to make
concessions without the other side making any in return.

Typically used in team negotiations where one member of the team makes extreme or
unreasonable demands, and the other offers a more rational approach

Tactic #4: Limited Authority

This tactic is a variation on the good guy/bad guy routine, but instead of two people working over
you, the one person you’re dealing with tells you that he or she must approve any deals with an
unseen higher authority. Sometimes, this higher authority exists, but other times your counterpart
will create this figure to gain an edge in the negotiation process.

Tactic #5: The Red Herring/Decoy

This technique comes from fox hunting competitions, where one team drags a dead fish across the
fox’s path to distract the other team’s dogs. At the bargaining table, a red herring means one
side brings up a minor point to distract the other side from the main issue. Effective and
ethical negotiators generally agree that this tactic is the sleaziest of them all.

When your negotiation process is bogged down with a minor problem, and your counterpart insists
on settling it before they’ll even talk about more important issues, then you are probably dealing
with a red herring. In this case, use extreme caution, and suggest setting the issue aside
temporarily to work out other details.

Tactic #6: The Trial Balloon

Trial balloons are questions designed to assess your negotiating counterpart’s position without
giving any clues about your plans. For example, you may ask your counterpart, “Would you
consider trying our services on a temporary basis?” or “Have you considered our other service
plans?” Essentially, these types of questions put the ball in your counterpart’s court, and the nice
part about them is they aren’t really offers. They allow you to gain information without making a
commitment. It tempts the other party to make the first offer.

When you’re on the receiving end of a trial balloon question, you may feel compelled to answer it
thoroughly. To maintain your edge, resist this temptation and counter with another question. For
example, if someone asks, “Would you consider financing the house yourself?” respond, “Well, if I
did, what would your offer be?”

Tactic #7: High Ball/Low-Ball

The highball/lowball tactic is one of the oldest hardball moves in the book. Your
counterpart will open with an extremely high or low offer, which they hope will
force you to reconsider your resistance points and goal. If you haven’t done your
research, or aren’t aware of what is happening, you may fall for it. The best way to
navigate this scenario is to call their offer out and refuse to continue unless they
are going to take you seriously. By insisting on a more reasonable opening offer,
rather than trying to counter, you force them to continue on your terms while
appearing to be more reasonable yourself.

If the attempt is obvious, you should also voice your displeasure at their tactic and
threaten to walk away. Calling out their move will show that you are familiar with
how these deals happen, and you won’t continue unless they change their stance. If
it is less obvious, ask them to justify their extreme offer. Do your research ahead of
time and know what your alternatives (BATNA) and resistance points are. If your
counterparts do not cooperate, then you should seriously reconsider your
partnership with them.
Low-balling is the opposite of the trial balloon. Instead of tempting you to make the first offer, your
counterpart will open the process with a fantastic offer. Then after you agree, they start hitting you
with additional necessities.

For example, say you see an ad for a product priced lower than other stores. But then after you
agree to buy, the sales representative uncovers the hidden costs, such as shipping or installation.
In the end you probably pay more than you would have at another store listing a higher price on
the product. To avoid falling victim to this tactic, ask your counterpart about additional costs before
agreeing to any deal.

Tactic #8: The Bait-and-Switch

Similar to low-balling, the bait-and-switch tactic should be avoided. Your counterpart may try to
attract your interests with one great offer, but then hook you with another mediocre one. This tactic
will almost always burn you, unless you can recognize it. If your counterpart were really able to
offer a genuinely good deal, they wouldn’t have to resort to bait-and-switch.

Tactic #9: Outrageous Behavior

Outrageous behavior can be categorized as any form of socially unacceptable conduct intended to
force the other side to make a move, such as throwing a fit of anger or bursting into tears. As most
people feel uncomfortable in these situations, they may reduce their negotiating terms just to avoid
them.

However, the most effective response to outrageous behavior is none at all. Just wait for the fit to
die down before reacting, because emotional negotiations can result in disaster.

Tactic #10: The Written Word

When terms of a deal are written out, they often seem non-negotiable. For example, when was the
last time you negotiated a lease, or a loan, or even a service contract that was typed up in advance
in an official-looking document? You probably assumed these deals were non-negotiable, and for
some reason most people make the same mistake of accepting terms that appear in writing.

The best defense against this tactic is simply to question everything, whether it appears in writing
or not. You’ll inevitably run into some standard, non-negotiable documents, but it never hurts to ask
questions. You may be surprised how many contracts actually are negotiable when challenged.

Tactic #12: Snow Job

A snow job is a particularly common tactic designed to confuse and distract you. It happens when
the other party reveals a lot of information, overwhelming you with facts and figures. When you’re
on the receiving end of a snow job, your biggest challenge is to determine what is truly important
and what is simply there to distract you. It often features very technical language or jargons and
requires expertise in a subject area in order to translate what is being said.
The key is not to agree to anything you do not understand, which is the intended
purpose of the snow job tactic. Pay close attention to what they are saying, and
look for inconsistencies in their responses.

Sources :

1. (Advanced Negotiation Part I by Paul J. Zwier of Emory Law School on Legal Negotiation)
https://www.youtube.com/watch?v=B0L7TMcDDAU

2. Margaret Neale: Negotiation : Getting What You Want https://www.youtube.com/watch?

v=MXFpOWDAhvM

3. John Patrick Dolan’s Book : Negotiate Like the Pros.

4. The Law on ADR by Jim V. Lopez