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 NEGOTIATION AND LAWYERS
Art Hinshaw
John J. Bouma Fellow in Alternative Dispute Resolution
Clinical Professor of Law and Founding Director, Lodestar Dispute Resolution Center
Sandra Day O’Connor College of Law, Arizona State University

Alyson Carrel
Clinical Associate Professor of Law and Co-Director, Center on Negotiation and Mediation
Northwestern University Pritzker School of Law

Leonard L. Riskin
Visiting Professor of Law and Distinguished Senior Fellow, Center on Negotiation and Mediation, Northwestern University
Pritzker School of Law
Chesterfield Smith Professor of Law Emeritus
University of Florida Levin College of Law

Chris Guthrie
Dean and John Wade-Kent Syverud Professor of Law
Vanderbilt University Law School

Richard C. Reuben
James Lewis Parks Professor of Law and Journalism
University of Missouri School of Law

Jennifer K. Robbennolt
Alice Curtis Campbell Professor of Law and Professor of Psychology
University of Illinois College of Law

Nancy A. Welsh
Professor of Law and Director, Dispute Resolution Program
Texas A&M University School of Law
The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you

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 ACKNOWLEDGMENTS
—————

Negotiation and Lawyers would not have been possible without the support of the following
individuals who provided invaluable research assistance: Rebekah Gordon, Julia Nagle, and Lisa
Winkler (Northwestern), as well as McCall Hoerz (Arizona State). We also appreciate the support
from our editor at West Academic, Jon Harkness, who shared in our enthusiasm from the
beginning of its conception. We all want to thank our co-authors for their time and energy on this
book and on Dispute Resolution and Lawyers, which paved the way to make Negotiation and
Lawyers possible.
Last, we gratefully acknowledge the permission extended to reprint excerpts from the works
listed below:
Charles B. Craver, Skills and Values: Legal Negotiating, 31, 46–47 (2nd ed. 2012).
Charles B. Craver, The Impact of Negotiator Styles on Bargaining Interactions 35 Am. J. Trial
Advoc. 1, 10–13, 17 (2011).
Jayne Seminare Docherty, Culture and Negotiation: Symmetrical Anthropology for Negotiators,
87 Marq. L. Rev. 711, 712–17 (2004).
Noam Ebner, Negotiating via Email, in The Negotiator’s Desk Reference 116, 119–129 (Andrea
Kupfer Schneider & Christopher Honeyman eds., 2017). Republished with permission of
Dispute Resolution Institute.
Noam Ebner, Negotiating via Videoconferencing, in The Negotiator’s Desk Reference155, 164–
66 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2017). Republished with
permission of Dispute Resolution Institute.
Excerpts from GETTING TO YES 2/e by Roger Fisher, William Ury and Bruce Patton.
Copyright © 1981, 1991 by Roger Fisher and William Ury. Reprinted by permission of
Houghton Mifflin Harcourt Publishing Company. All rights reserved.
Gary Goodpaster, A Primer on the Competitive Bargaining, 1996 J. Disp. Resol. 325, 342–43.
Michael Green, Negotiating while Black, in The Negotiator’s Desk Reference 563, 563–581
(Andrea Kupfer Schneider & Christopher Honeyman eds., 2017). Republished with
permission of Dispute Resolution Institute.
Art Hinshaw & Jess Alberts, Doing the Right Thing: An Empirical Study of Attorney Negotiation
Ethics 16 Harv. Neg. L. Rev. 95, 102–106 (2011). Reprinted with Permission of Harvard
University/Law School; permission conveyed through Copyright Clearance Center, Inc.
Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo. L.J. 1789, 1792–94 (2000).
Carrie Menkel-Meadow, What Difference Does “Gender Difference” Make? 18 Dispute
Resolution Mag. 4, 5–7 (2012). © 2012 by the American Bar Association. Reprinted with
permission. All rights reserved. This information or any or portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association.
Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving and Teachable in
Legal Education? 6 Harv. Negot. L. Rev. 97, 105–06, 109–11 (2001). Reprinted with
Permission of Harvard University/Law School; permission conveyed through Copyright
Clearance Center, Inc.
Carrie Menkel-Meadow, Know When to Show Your Hand, 10 Negot. J. 1, 1–3 (June 2007).
Republished with permission of John Wiley and Sons, Inc.; permission conveyed through
Copyright Clearance Center, Inc.
Carrie Menkel-Meadow, Toward Another View of Legal Negotiation: The Structure of Problem
Solving, 31 U.C.L.A. L. Rev. 754, 755–61, 795–801 (1984).
Beyond Winning: Negotiating to Create Value in Deals and Disputes by Robert H. Mnookin, Scott
Peppet and Andrew S. Tulumello, Cambridge, Mass.: The Belknap Press of Harvard
University Press, Copyright © 2000 by the President and Fellows of Harvard College.
Leonard Riskin, Further Beyond Reason: Emotions, the Core Concerns, and Mindfulness in
Negotiation, 10 Nev. L.J. 289 (2010).
Jennifer K. Robbennolt, Apology-Help or Hindrance? An Empirical Analysis of Apologies’
Influence on Settlement Decision making, Dispute Resolution Magazine, Vol 10, Issue 3,
2004. © 2004 by the American Bar Association. Reprinted with permission. All rights reserved.
This information or any or portion thereof may not be copied or disseminated in any form or
by any means or stored in an electronic database or retrieval system without the express
written consent of the American Bar Association.
Andrea K. Schneider, Teaching a New Negotiation Skills Paradigm, 39 Wash. U.J.L. & Pol’y 13,
27–37 (2012).
James K. Sebenius, Negotiation Analysis: A Characterization and Review 38 Management Science
18, 28–30 (Jan 1992). Republished with permission of The Institute for Operations Research
and the Management Sciences (INFORMS); permission conveyed through Copyright
Clearance Center, Inc.
Excerpt(s) from BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR
REASONABLE PEOPLE by G. Richard Shell, copyright © 1999, 2006 by G. Richard Shell.
Used by permission of Viking Books, an imprint of Penguin Publishing Group, a division of
Penguin Random House LLC. All rights reserved.
Nancy A. Welsh, The Reputational Advantages of Demonstrating Trustworthiness: Using the
Reputation Index with Law Students 28 Negot. Journal 117, 136–139 (2011). Republished
with permission of John Wiley and Sons, Inc.; permission conveyed through Copyright
Clearance Center, Inc.
James E. Westbrook, How to Negotiate With a Jerk Without Being One 1992 J. Disp. Resol. 443,
444–46.
James White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation 1980 Am. B.
Found. Res. J. 926, 927–29, 931–35. © 1980 by the American Bar Association. Reprinted with
permission. All rights reserved. This information or any or portion thereof may not be copied
or disseminated in any form or by any means or stored in an electronic database or retrieval
system without the express written consent of the American Bar Association.
A.H.
A.C.
L.L.R.
C.G.
R.C.R.
J.K.R.
N.A.W.
 TABLE OF CONTENTS
—————

ACKNOWLEDGMENTS

Introduction

Chapter 1. Overview
A.Approach to Conflict
G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable
People
B.Negotiation Skills
Andrea Kupfer Schneider, Teaching a New Negotiation Skills Paradigm

Chapter 2. Fundamental Concepts

A.Interests
Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement Without Giving In
B.Objective Criteria
G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable
People
C.Best Alternative to a Negotiated Agreement
Roger Fisher, William Ury, and Bruce Patton, Getting to Yes: Negotiating
Agreement Without Giving In
D.The Negotiator’s Dilemma
1.The Negotiator’s Dilemma as a Theoretical Construct
James K. Sebenius, Negotiation Analysis: A Characterization and Review
2.The Negotiator’s Dilemma in Practice
a.Value Claiming
Russell Korobkin, A Positive Theory of Legal Negotiation
b.Value Creating
Carrie J. Menkel-Meadow, Toward Another View of Legal Negotiation:
The Structure of Problem Solving
c.Mixing Approaches
Charles B. Craver, The Impact of Negotiator Styles on Bargaining Interactions
E.Reputation and Trust
Nancy A. Welsh, The Reputational Advantages of Demonstrating Trustworthiness:
Using the Reputation Index with Law Students

Chapter 3. The Negotiation Process

G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for Reasonable
People
A.Preparation
1.Reservation Points and Goals
Russell Korobkin, A Positive Theory of Legal Negotiation
 2.Options
Carrie Menkel-Meadow, Aha? Is Creativity Possible in Legal Problem Solving
and Teaching in Legal Education?
3.Information Gathering
4.Emotions
Leonard L. Riskin, Further Beyond Reason: Emotions, The Core Concerns,
and Mindfulness in Negotiation
B.Information Exchange
1.Seeking Information
2.Sharing Information
Carrie Menkel-Meadow, Know When to Show Your Hand
C.Offers and Concessions
1.Standard Concession Practice
G. Richard Shell, Bargaining for Advantage: Negotiation Strategies for
Reasonable People
2.Creating Value Through Offers and Concessions
Robert H. Mnookin, Scott R. Peppet & Andrew S. Tulumello, Beyond
Winning: Negotiating to Create Value in Deals and Disputes
3.Apologies
Jennifer K. Robbennolt, Apology—Help or Hindrance? An Empirical
Analysis of Apologies’ Influence on Settlement Decision Making
4.Hard Bargaining Tactics
Gary Goodpaster, A Primer on Competitive Bargaining
James E. Westbrook, How to Negotiate with a Jerk Without Being One
D.Commitment
Charles B. Craver, Skills and Values: Legal Negotiating

Chapter 4. Principals and Agents

Robert H. Mnookin, Scott R. Peppet, Andre S. Tulumello, Beyond Winning: Negotiating
to Create Value in Deals and Disputes

Chapter 5. Ethical and Legal Limitations

A.Attorney Negotiation Ethics
James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in
Negotiation
Art Hinshaw & Jess K. Alberts, Doing the Right Thing: An Empirical Study of Attorney Negotiation
Ethics
B.The Law of Bargaining
Hoyt Properties, Inc. v. Production Resource Group, L.L.C.

Chapter 6. Differences Among Negotiators

A.Culture
Jayne Seminare Docherty, Culture and Negotiation: Symmetrical Anthropology for Negotiators
B.Gender
Carrie Menkel-Meadow, What Difference Does “Gender Difference” Make?
C.Race
Michael Z. Green, Negotiating While Black

Chapter 7. Technology and Innovation

A.Technology as Communication Conduit
1.Negotiating Via Email
Noam Ebner, Negotiating via Email
2.Negotiating Via Video Conference
Noam Ebner, Negotiation via Videoconferencing
B.Technology and Data-Driven Decision-Making
Jean R. Sternlight, Pouring a Little Psychological Cold Water on Online Dispute Resolution
INDEX
Negotiation and Lawyers
 1

INTRODUCTION
Negotiation is an interpersonal process through which we arrange with others to resolve
disputes or plan transactions, often by reconciling conflicting, or apparently conflicting, interests.
It involves communication, using words or actions, of demands, wishes, and perspectives.
Most lawyers spend a major part of their professional lives engaged in this process. Lawyers
in every practice area engage in negotiations, usually with other lawyers. In addition, negotiation
makes up an important part of other dispute resolution processes, such as mediation. So many
cases in litigation are actually settled through negotiation that Professor Marc Galanter finds it
useful to consider the two processes as one “litigotiation” process. Marc Galanter, World of Deals:
Using Negotiation to Teach About Legal Process, 34 J. Legal Educ. 268, 268 (1984). Professor Gary
Goodpaster has gone a step further and suggested that we could learn much by looking at litigation
as part of the negotiation process, and Professor J. Maria Glover has gone so far as to suggest that
we change the name “Federal Rules of Civil Procedure” to “Federal Rules of Civil
Settlement.” See Gary Goodpaster, Lawsuits as Negotiations, 8 Negot. J. 221 (1992); J. Maria
Glover, The Federal Rules of Civil Settlement, 87 N.Y.U. L. Rev. 1713 (2012).

Negotiation Nugget

In the early 1990s the American Bar Association commissioned a blue ribbon task force, in part,
to help develop a curriculum of skills training for law schools. Not surprisingly, the task force
identified negotiation as a fundamental legal skill. For more, see Legal Education and
Professional Development—An Education Continuum (1992), commonly known as the
McCrate Report. https://perma.cc/M4TK-6BLN.

Lawyers do not merely negotiate with other lawyers, however. In their professional lives,
lawyers also negotiate with their bosses, partners, subordinates, and with providers of supplies and
services. Lawyers also spend a significant portion of their professional lives negotiating with their
clients about various aspects of their representation. And in their personal lives, lawyers, like all
people, negotiate constantly—with their family, friends, physicians, clergy, and so on.
2

Because negotiation takes place in such a wide variety of situations, and relies significantly on
intuition and judgment, some argue that negotiation skills cannot be taught. We believe, however,
that anyone can improve his or her negotiating skills by learning from experience and by practicing,
drawing on the social science of negotiation, planning, and reflecting on negotiation.
In this book, we cannot hope to cover the many situations in which lawyers negotiate. For
that reason, we attempt to deal with the basics: a set of concepts and suggestions that will help you
understand the various negotiation situations in which you may find yourself. In Chapter 1, we
begin by focusing on individual characteristics and skills of negotiators. In Chapter 2, we introduce
fundamental negotiation concepts that impact negotiation, including the negotiator’s dilemma—
the push and pull between dividing resources and exploring the underlying interests at the core of
the dispute to discover more (or different) resources to divide. Believing that nothing is more
practical than a good theory, we hope that this section will give you a solid underpinning for
understanding the approaches that you and your counterparts employ in negotiations. Then, in
Chapter 3, we explore the negotiation process and the various tasks that good negotiators engage
in when negotiating. In Chapter 4, we turn our attention to issues of agency and authority in
negotiation, exploring the roles of lawyers and clients. Chapter 5 focuses on the limits on
negotiation behavior. In Chapter 6, we examine the potential impacts of culture, gender, and race
on the negotiation process. And in Chapter 7, we discuss the increasing impact technology has on
negotiation.
 3

CHAPTER 1

OVERVIEW
When negotiating, whether professionally or personally, we regularly rely on our intuition and
judgment, factors that are influenced by our life experiences. Some of these experiences influence
how we act and react to the situations we find ourselves in, as well as how others react to us.
Understanding that negotiation is an interpersonal process, the best way to begin exploring this
topic is by thinking and learning about our strengths, our weaknesses, and how others perceive us.
Without this understanding, it is all but impossible to become better negotiators.

A.APPROACH TO CONFLICT
Because negotiation always involves some sort of conflict, be it large or small, a negotiator’s
general tendencies in responding to conflict and disputes represent a critically important
component of negotiation. Professor G. Richard Shell provides the following thought experiment
to help negotiators discern which of five approaches to conflict most fit them.

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR

REASONABLE PEOPLE
8–12 (2d ed. 2006)

Your personal negotiation style is a critical variable in bargaining. If you don’t know what
your instincts and intuitions will tell you to do under different conditions, you will have a great deal
of trouble planning effective strategies and responses.
***
To begin our exploration of your bargaining strengths, try the following thought experiment.
Imagine you are one of ten people, all of whom are strangers, sitting at a big round table in a
conference room. Someone comes into the room and makes the following offer: “I will give a prize
of one thousand dollars to each of the first two people who can persuade the person sitting
opposite to get up, come around the table, and stand behind his or her chair.”
Do you have that picture in mind? You are one of ten strangers at the table. You can see the
person sitting opposite you, and that person is looking
4
at you. The first two people who can persuade the person sitting opposite to get up, come
around the table, and stand behind his or her chair gets $1,000. Everyone else gets nothing.
What strategy would you use to respond to this strange offer? You will need to move quickly
because everyone else is also thinking about what to do.
Before reading on, close your eyes and think of your response. Note what strategy comes to
your mind first and write it down. Then see what other responses you can think of. The possibilities
will help me introduce five generic negotiating strategies, which will, in turn, lead us to a deeper
look at your personality as a negotiation variable.
One reaction is to sit tight and do nothing, suspecting a trick or worrying that you might look
like a fool running around a table in response to a stranger’s offer. “I don’t like to negotiate, so I
don’t do it unless I have to,” you might say. This is the avoiding response . . . . Some people might
say that avoiding a negotiation is a cop-out, not a bargaining strategy. But you do not have to look
very far to notice that many important negotiations are marked by one side or the other studiously
avoiding coming to the table. The North Koreans successfully avoided negotiating over their
nuclear weapons programs for years—and built up bargaining leverage in the meantime.
Presidential candidates in the United States who find themselves ahead in the polls frequently
decline to negotiate when their opponents want to increase the number of presidential debates. In
general, avoiding is a good strategy when you are happy with the status quo—but it may not be the
best approach to the table problem.
Perhaps the most obvious response is to offer the person sitting opposite you $500 if he or
she will race around and stand behind your chair. This is the compromise solution. Each person
agrees to share the gains equally between them. Compromise is a simple, fair, fast strategy that
resolves many negotiations amicably. But is it a good strategy for the table problem? You and your
partner may arrive at a quick agreement to split the money evenly, but which of you should run
and who should sit? During the few seconds it takes to address this issue, other people are already
racing around the table. There is no compromise solution to the question of which of you should
run—so a simple compromise does not fully solve the problem. An additional strategy is needed.
That strategy is our third candidate—accommodation. You could simply get up and run
behind your opponent’s chair. If you do this in
5
response to your partner’s offer to split the money, you can refer to that promise as a
bargaining standard in any subsequent negotiation over the money. But there may be no money to
split. The people who implemented the 100 percent accommodating strategy took off as soon as
they heard the stranger’s offer and got to their partners’ chairs before you did. But they face a
problem, too. The lucky people who were the beneficiaries of the accommodating strategy now
have $1,000 and the people who ran have nothing. These helpful negotiators must trust the people
for whom they earned the money to share it—without the benefit of a prior commitment on how
it will be shared. And remember—everyone at the table is a stranger who never expects to see their
counterpart again.
The fourth response embodies the competitive strategy. The idea here is to obtain the entire
$1,000 as well as the power to decide how it will be shared. One way might be to offer to split the
money 50–50 and then later refuse to do so—to renege on your promise. That would obviously
be unethical, but some people might do it. After all, there was no mention of a court system to
litigate disputes about who said what. An even more aggressive stance would be to lie and say you
have a broken leg so you can’t move, begging your partner to run as quickly as possible. Are all
competitive strategies as ethically dubious as these two? No. We will see examples of many
competitive strategies in the pages ahead that are perfectly ethical under any system of morals. But
the table problem is not structured well for a strategy that is both ethical and competitive. Moreover,
this strategy, like the compromise approach, may take too long to implement.
 The final strategy is the most imaginative, given the terms of the offer. You get out of your
chair, start running, and scream: “Let’s both get behind each other’s chairs! We can each make a
thousand dollars!” This can work—if you are quick enough. This is the collaborative or problem-
solving strategy. Instead of trying to figure out how to divide $1,000 two ways, the person using
this approach has the insight to see that there is a way for both parties to get $1,000 out of the
situation.
The collaborative strategy is often the hardest to implement. It seeks to discover the
underlying problem through good analysis and candid disclosure of interests, find the most elegant
solution by brainstorming many options, and resolve tough issues using fair standards and criteria.
In many ways, it represents an ideal. As we shall see, problem-solving strategies are especially useful
in complex negotiations, such as those faced by international diplomats or corporate negotiators
doing mergers or acquisitions. They can also play a useful role in family negotiations, where it is
vitally important to
6
avoid having “winners” and “losers.” But many obstacles stand in the way of collaborative
approaches, such as lack of trust between the parties, greed, personality, cultural differences, and
simple lack of imagination.
***
Your personal bargaining styles are nothing more (or less) than your inclinations or
predispositions to make certain moves when you are negotiating. These inclinations can come from
many sources—childhood, family, early professional experiences, mentors, ethical systems or
beliefs, and so on. And your inclinations can change over time as your knowledge of negotiation
grows and you gain more confidence in a wider range of skills. But I genuinely believe that most
of us have a set of core personality traits that make radical changes in our basic bargaining
preferences difficult.
———————

POINTS FOR DISCUSSION

1.What is your most likely response to conflict? Your least likely response? Learning about the various
responses to conflict and their own tendencies provides negotiators with a general framework for
understanding themselves and their counterparts, and for making sense of their interactions.

2.What do you think happens when two negotiators using the “competing” approach negotiate with
one another? Two negotiators using the “avoiding” approach? Two negotiators using the “compromising”
approach? How about a “competing” negotiator and an “accommodating” negotiator? A “competing”
negotiator and an “avoiding” negotiator?

Negotiation Nugget

There are a number of online tools one can use to learn how you respond to conflict. One of the
most recognized and used is the Thomas-Kilmann Conflict Mode Instrument. The categories Shell
discusses in this excerpt are identified there.
 3.Do you think you respond in the same manner in professional settings as in personal settings? Is your
natural response the same when you are negotiating on your own behalf as when you are negotiating for
someone else? What other contextual factors might—or should—influence your response to conflict? When
Dean Jennifer Gerarda Brown asks her students to complete the Thomas-Kilmann Instrument to test
conflict styles, she instructs them to think in terms of the relationship in which they can be their “ ‘truest
self’ . . . in which you do not assume an artificial persona specific to the relationship.” She then reminds them
that the response demanded by
7
their role—e.g., representing a client in a legal negotiation—“may be a departure from what they
identified as authentic, instinctive, or reflexive.” Jennifer Gerarda Brown, Empowering Students to Create and
Claim Value Through the Thomas-Kilmann Conflict Mode Instrument, 28 Neg. J. 79, 84–85 (2012). Professor Leonard
Riskin provides additional insights into the differences between our negotiation styles in professional settings
versus personal settings by combining conflict resolution theories with a model of the mind called Internal
Family Systems (IFS). The IFS model provides a construct for understanding why our “truest self” may not
always present itself depending on the context of the negotiation. Leonard R. Riskin, Managing Inner and Outer
Conflict: Selves, Subpersonalities, and Internal Family Systems, 18 Harv. Negot. L. Rev. 1 (2013).

4.Professor Leonard Riskin has also argued that negotiators who practice mindfulness meditation are
likely to gain insight into their own personalities, moods, and the way they respond to conflict and,
consequently, perform better in negotiations. See Leonard L. Riskin, The Contemplative Lawyer: On the Potential
Contributions of Mindfulness Meditation to Law Students, Lawyers, and Their Clients, 7 Harv. Negot. L. Rev. 1 (2002).

B.NEGOTIATION SKILLS
When speaking of negotiation skills, the question naturally arises—exactly what skills are we
talking about? You may be thinking of skills like listening, asking questions, and other discrete skills.
Professor Andrea Schneider has analyzed the skills negotiators employ to identify several meta-
skills, drawn primarily from the approaches to conflict discussion earlier in this chapter, to help
place many negotiation concepts in context.

ANDREA KUPFER SCHNEIDER, TEACHING A NEW NEGOTIATION SKILLS PARADIGM

39 Wash. U.J.L. & Pol’y 13, 27–37 (2012)

A.Effective Skills Permit Stylistic Choices

[W]ith more skills in their toolbox, students will best be able to prepare, start, respond, and
conclude negotiations in a more thoughtful manner. . . . In thinking about what makes any given
skill more effective, . . . I’ve organized our skill expectations along a spectrum of minimal to average
skill level to best practices.
1.Assertiveness
The ability to assert yourself in a negotiation can depend on your alternatives, your goals, your
research or knowledge in the area, and your ability to speak persuasively. In order to assert oneself,
a minimal skill might
8
 be some level of competence and knowledge. An average skill would be to have fully
researched the situation and be well-prepared. Best practices would include confidence based on
competence and knowledge.
. . . Minimal skill in speaking would be the ability to explain your client’s position. Average
skill would include speaking clearly about why this position is worthwhile. Best practices would
include researching in advance what types of arguments, criteria (legal precedent, industry practice,
etc.), and salesmanship techniques work best with your particular counterpart. There are, no doubt,
other skills as part of assertiveness that could be similarly mapped.
2.Empathy
Empathy is linked to success in a variety of careers. The skill of “empathic accuracy,”
according to William Ickes, is what creates “the most tactful advisors, the most diplomatic officials,
[and] the most effective negotiators.” Even lawyers and economists now recognize that separating
decision-making from emotions is detrimental.
Being empathetic in a negotiation requires a complex mix of skills—a willingness to hear the
other side, open-mindedness or curiosity, good questioning and excellent listening, among others.
First, one needs the belief and understanding that your counterpart might have something to
contribute. And so a minimal skill would be to distinguish between the rare win-lose negotiations
and those that might have room for joint gain. An average skill would be the ability to find
integrative potential. Best practices would be to translate the parties’ interests into realistic
integrative proposals.

Note

Interests are the underlying motivations driving an individual’s demands. This concept is
explored in more depth in Chapter 2.

Second, one needs the skills to gather information about one’s counterpart to build the
relationship in order to work together substantively. A minimal skill might be to ask questions of
the other side in order to get information about them to help move the process along. An average
skill would perhaps be to ask questions to uncover the counterpart’s interests and needs. Best
practices would include having a learning conversation in order to better understand the
counterpart’s client and that client’s situation in order to propose solutions that respond to those
needs.
9

Similarly, a minimal skill in listening would be to let the other side explain their case without
interrupting. An average skill would be to ask questions when they are done to both clarify and
demonstrate one’s listening. Best practices would include looping or active listening to confirm
that you accurately understand their perspective and that, even if you don’t agree with their position,
you respect their position.
3.Flexibility
Talented negotiators work to find a variety of ways to get the job done both in their strategic
choices as well as more flexible outcomes. Being flexible in negotiation allows a stylistic move from
simple compromising to more sophisticated integrative solutions. It also helps to prevent stalemate.
And so a minimal skill on flexible strategic choices might be choosing a style based on a particular
context or counterpart. An average skill would be shifting your strategy or tactics in the course of
the negotiation to respond to your counterpart. Best practices would include careful thinking about
the reputation of your counterpart, selecting skills on that basis as well as your own skill set and
your client’s situation, and then adapting your skills as needed based on your counterpart and newly
acquired information in the course of the negotiation.
In terms of finding creative outcomes, Leigh Thompson writes about three types of creativity:
fluency (the ability to create many solutions); flexibility (the ability to generate different solutions);
and originality (the ability to come up with a unique solution). A negotiator will want to work on
all three of types in order to be most effective and to think about the processes (for example,
brainstorming) that might assist in creating different solutions. A minimal skill would be simply
knowing your priorities so that you could do trade-offs at the table. An average skill could be
preparing one or two different tradeoffs that might work (cash payment in exchange for earlier
settlement, length of contract in exchange for lower salary, etc.) Best practices would be to examine
a variety of creative processes both before and during a negotiation—non-specific compensation,
contingent agreements, adding issues, etc.—that could provide additional solutions.
4.Social Intuition
We know that having a pleasant and welcoming personality helps effectiveness [sic] in life.
The work of Daniel Goleman on emotional and social intelligence has made it clear that successful
people manage their emotions and social skills in order to get along with others. . . . Goleman
outlines the significant business and life advantages to being more socially
10
intelligent. And recent articles have focused on the importance of teaching these skills to
lawyers.
Social intelligence itself is defined as both social awareness (much of this falls under empathy
discussed above) and social facility, which includes interacting and presenting ourselves to others.
Others have also written about the importance of being nice and of the “No-Asshole” rule in
business as being exceedingly successful.

Negotiation Nugget

Daniel Goleman has written several books on emotional intelligence that are widely available in
libraries, bookstores, and online.

In a more specific negotiation context, we have seen this from several angles. The research
on tone in negotiation shows that positive moods can make people more creative and more likely
to use integrative strategies. The converse is also true—negotiators in bad moods are more likely
to be competitive.
Similarly, in rating negotiators as effective, [the results of a prior study] show how many
adjectives covering social skills fit into effectiveness: personable, rational, perceptive, self-
controlled, sociable, helpful, smooth, etc. Unsurprisingly, these adjectives could be mapped onto a
measure of social intelligence.
 ***
In terms of setting rapport, for example, Leigh Thompson suggests that a “[s]avvy negotiator[ ]
increase[s her] effectiveness by making themselves familiar to the other party.” A minimal skill
would be to have a level of cordiality. An average skill level would be to schmooze with the other
side, asking questions about them, and breaking the ice. Best practices would include advance
research to find areas of commonality and to be genuinely friendly and curious.
5.Ethicality
Perceptions of a negotiator’s ethicality—his trustworthiness and willingness to follow the
ethical rules—has a direct impact on reputation. And reputation—the perception of ethicality—is
directly linked to effectiveness in negotiation. A minimal level of skill would be to follow the
professional rules of responsibility and not actively deceive the other side. An average level of skill
would be to also view possible deceptive behavior through the lens of likely ramifications including
your reputation. Best
11
practices would include being actually trustworthy and treating the other side fairly.
***
Being both trustworthy and trustful includes defending yourself against the unethical. A
minimal level of skill would be to assume that others might lie to you and contemplate what you
can do about that. An average level of skill would include asking defensive questions to double
check their assertions and writing compliance measures into the contract. Best practices could
include building a sufficiently strong relationship so that it is more difficult for others to lie to you.
6.Putting the Skills Together
Ideally, we could create a three dimensional figure that demonstrates how all these skills relate
to one another. A five-sided pyramid in which each skill could be measured would have been lovely.
If one imagines, however, that the pyramid has been unfolded, it might look something like this:

Negotiation Origami

●Best practice
●Average practice
●Minimum practice
Each person could measure themselves on each skill independently while working to broaden their
skill arsenal. Each skill might not be utilized in each negotiation but the skill-set itself would always
be available.
12
———————

POINTS FOR DISCUSSION

1.Some might argue that some of the skills that Professor Schneider identifies are more a function of
personality and therefore cannot be taught, especially to adults. Do you agree or disagree with this claim?
Might this be the case with some more than others? If so, which ones and why?

Digging Deeper

Note that these skills appear to be interpersonal skills more so than “legal” analytical skills. Why
would that be? Is that problematic in any way?

2.In 2016, the Institute for the Advancement of the American Legal System published a report finding
a majority of practicing attorneys value characteristics such as integrity, work ethic, and resilience in recent
law school graduates more than legal knowledge and skills. The Institute for the Advancement of the
American Legal System, Foundations of Practice: The Whole Lawyer and the Character Quotient (2016). How might
you gain these types of skills?

3.Implicit in Professor Schneider’s article is the importance of listening, which is often identified as the
most essential of all lawyering skills. Poor listening skills means missing out on important data—interests,
goals, preferences, constraints, etc.—from clients and counterparts. Listening connotes respect and caring,
and people are more likely to trust those who they believe listen to them. According to Professors Jennifer
K. Robbennolt and Jean R. Sternlight,

[I]n order to both listen effectively and appear to be listening effectively, lawyers should
typically let their counterpart talk without interruptions. Similarly, it is useful for lawyers to focus
on listening to the answers provided rather than to assume that they know what the other will say
or be preoccupied with what to say or ask next. A good listener uses follow-up questions to probe
for additional details: “Can you tell me a bit more about that?” A good listener also uses follow-
up questions to clarify that she has understood what the speaker has said: “So, you’ve said that . . .
Have I got that right?” Such questions indicate to the speaker that the listener has heard him,
verify the listener’s understanding, and invite any necessary clarification or elaboration. Such
active listening motivates speakers to continue.

Jennifer K. Robbennolt & Jean R. Sternlight, PSYCHOLOGY FOR LAWYERS: UNDERSTANDING THE HUMAN
FACTORS IN NEGOTIATION, LITIGATION, AND DECISION MAKING 161–63 (2012).

13

4.Researchers have found positive correlations among listening and perceptions of trustworthiness,
willingness to disclose information, and procedural justice. See Rebecca Hollander-Blumoff & Tom R.
Tyler, Procedural Justice in Negotiation: Procedural Justice, Outcome Fairness, and Integrative Potential, 33 Law & Soc.
Inq. 473 (2008); Rebecca Hollander-Blumoff, Just Negotiation, 88 Wash. U. L. Q. 381 (2010). Procedural
justice focuses on the fairness of the procedure separate from the fairness of the outcome. Research
convincingly demonstrates that if people judge a process to be fair, they are more likely to perceive
procedure’s outcome to be fair and to comply with the outcome—even if it is unfavorable to them. See E.
ALLAN LIND & TOM R. TYLER, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE (1988); Nancy A.
Welsh, Making Deals in Court-Connected Mediation: What’s Justice Got to Do with It?, 79 Wash. U. L. Q. 787, 859–
61 (2001).

5.Relatively straightforward paraphrasing can be effective as a means to demonstrate understanding of

key content. But reflective or active listening is an especially effective device for conveying non-judgmental
empathetic understanding, developing trust, and eliciting additional information. In active listening, the
interviewer restates both the content and the feelings she believes are associated with the statement as
explained below.

Active listening is a particular form of listening that involves conveying to the speaker . . .
that you have heard both the substance of what she has said as well as its emotional content. You
do this by “mirroring” or paraphrasing what you have heard said explicitly, and by putting into
words the implicit feelings emanating from the speaker; sometimes you may answer on only one
of these levels (addressing explicit content or implicit feelings, but not both), but often you will
need to respond both to the [words and] emotions.

Robert Dinerstein, Stephen Ellman, Isabelle Gunning & Ann Shalleck, Connection, Capacity and Morality in
Lawyer-Client Relationships, 10 Clinical L. Rev. 755, 758–62 (2004).

6.Active listening may seem a little contrived when you first try it. But with practice it can quickly
become much more natural as you adapt the principles to your own style and personality. But it does take
practice. To practice the listening concepts addressed in this chapter, choose a classmate or friend and spend
ten minutes actively listening to him as he describes a dispute in which he was involved. Then let him actively
listen to you as you spend ten minutes describing a dispute in which you were involved. Was active listening
easy or difficult? To the extent it was difficult, what made it difficult? How was it different from a normal
conversation, or a more formal interview? Did you feel that your counterpart really understood the facts
involved in your dispute? Did you feel that your counterpart really understood how you felt about the dispute?

14

7.Another way to practice active listening is to try it the next time you have a relatively minor dispute,
disagreement, or conflict with someone where you get the sense that the two of you are just talking past each
other. At that point, make a conscious effort to try it and see how it goes.

8.Active listening is an important technique for improving our listening skills, but it is not the only one.
One more technique that can be very helpful is the Loop of Understanding, commonly called “looping.”
Although the technique is similar to and borrows much from the active listening method discussed above,
looping extends it much further. In active listening, we reflect back to the speaker our sense of what they
were saying in terms of both the facts and the speaker’s emotional sense of the experience. The loop of
understanding takes the additional step of having the speaker confirm or correct the listener’s understanding.
There are four steps to the process:

1.The speaker says what he or she is going to say.

2.The listener reflects back what he or she understood, both the facts and emotional content.
(This is essentially active listening.)
 3.The listener then seeks confirmation from the speaker that the listener fully understood the
speaker.

4.The speaker confirms the accuracy of the listener’s understanding or corrects it by providing
more information and beginning the loop again (steps 1–3). This loop continues until the
speaker is fully satisfied that the listener completely understands the listener.

9.Critically, looping also communicates to the speaker that the listener actually understands what the speaker
said and how the speaker felt about it. This demonstration of understanding eliminates doubt in the mind of
the speaker and allows for a deeper connection between the speaker and the listener. Similarly, it allows the
speaker to correct the listener if the listener is wrong, and to do so by focusing precisely on the point of
misunderstanding. Interestingly, it can also clarify and deepen the speaker’s own thoughts in that the listener
may have accurately reflected back what the speaker was communicating, only for the speaker to find that
there was more to it than he or she thought, factually, emotionally, or both. See ROBERT MNOOKIN, SCOTT
PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND
DISPUTES 64–65 (2000).

15

CHAPTER 2

FUNDAMENTAL CONCEPTS
In 1959, then-President Dwight D. Eisenhower gave a televised address in which he reflected
on a recently completed European trip and explained his decision to invite the then-leader of the
Soviet Union to the United States during the middle of the Cold War. His hope was to reduce
tensions between the countries through negotiation, and he explained his negotiation philosophy
as follows: “fundamentals, with flexibility in tactics and method, is the key to any hope of progress
in negotiation.” Text of Eisenhower Speech on His European Trip, N.Y. TIMES, Sept. 11, 1959, at 8.
Although he was speaking in the context of international relations, we believe this philosophy
applies to all negotiation contexts.

Negotiation Nugget

To read this interesting speech in its entirety, go to https://www.presidency.ucsb.edu/

documents/radio-and-television-report-the-american-people-the-european-trip.

No matter whether you are experienced or inexperienced, becoming a better negotiator

requires a firm understanding of fundamental negotiation concepts. These foundational
concepts—interests, objective criteria, the best alternative to a negotiated agreement (BATNA),
the negotiator’s dilemma, and reputation—guide negotiators’ preparation, strategy decisions, and
the success or failure of both the negotiation itself and the implementation of the negotiated
outcome.

A.INTERESTS
 Understanding the difference between interests and positions is the most fundamental skill a
negotiator can learn. A position is what someone says she wants or is entitled to have. For instance,
a plaintiff in a personal injury case who asks for money damages of $50,000 is asserting a position.
An interest is the need or motive that underlies that position. The plaintiff might be motivated by
interests in paying bills, being treated with respect, clarifying her relationship with the defendant,
receiving an apology, or punishing the defendant. Money damages in a particular amount may or
may not satisfy each of these interests. Negotiations can focus on positions,
16
interests, or both. In this excerpt, Professor Roger Fisher and Messrs. William Ury and Bruce
Patton explain the concept of interests in negotiation in detail.

ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN
42–46 (3d ed. 2011)

Consider Mary Parker Follett’s story of two men quarreling in a library. One wants the
window open and the other wants it closed. They bicker back and forth about how much to leave
it open: a crack, halfway, three-quarters of the way. No solution satisfies them both. Enter the
librarian. She asks one why he wants the window open: “To get some fresh air.” She asks the other
why he wants it closed: “To avoid the draft.” After thinking a minute, she opens wide a window in
the next room, bringing in fresh air without a draft.

Negotiation Nugget

Mary Parker Follett (1868–1933) was a pioneer in the field of management and organizational
behavior. She believed that conflict created opportunities for inventive solutions that became
better known as the phrase “win-win” negotiations.

For a wise solution reconcile interests, not positions

This story is typical of many negotiations. Since the parties’ problem appears to be a conflict
of positions, and since their goal is to agree on a position, they naturally tend to think and talk
about positions—and in the process often reach an impasse. The librarian could not have invented
the solution she did if she had focused only on the two men’s stated positions of wanting the
window open or closed. Instead she looked to their underlying interests of fresh air and no draft.
This difference between positions and interests is crucial.
Interests define the problem. The basic problem in a negotiation lies not in conflicting
positions, but in the conflict between each side’s needs, desires, concerns, and fears.
The parties may say: “I am trying to get him to stop that real estate development next door.”
Or “We disagree. He wants $300,000 for the house. I won’t pay a penny more than $250,000.” But
on a more basic level the problem is: “He needs the cash; I want peace and quiet.” Or “He needs
at1
7l
east $300,000 to pay off the mortgage and put 20 percent down on his new house. I told my
family that I wouldn’t pay more than $250,000 for a house.”
 Such desires and concerns are interests. Interests motivate people; they are the silent movers
behind the hubbub of positions. Your position is something you have decided upon. Your interests
are what caused you to so decide.
***
Reconciling interests rather than positions works for two reasons. First, for every interest
there usually exist several possible positions that could satisfy it. All too often people simply adopt
the most obvious position . . . . When you do look behind opposed positions for the motivating
interests, you can often find an alternative position that meets not only your interests but theirs as
well. . . .
Reconciling interests rather than compromising between positions also works because behind
opposed positions lie many more interests than conflicting ones.
Behind opposed positions lie shared and compatible interests, as well as conflicting
ones. We tend to assume that because the other side’s positions are opposed to ours, their interests
must also be opposed. If we have an interest in defending ourselves, then they must want to attack
us. If we have an interest in minimizing the rent, then their interest must be to maximize it. In
many negotiations, however, a close examination of the underlying interests will reveal the
existence of many more interests that are shared or compatible than ones that are opposed.
For example, look at the interests a tenant shares with a prospective landlord:
1.Both want stability. The landlord wants a stable tenant; the tenant wants a permanent
address.
2.Both would like to see the apartment well maintained. The tenant is going to live there;
the landlord wants to increase the value of the apartment as well as the reputation
of the building.
3.Both are interested in a good relationship with each other. The landlord wants a tenant
who pays the rent regularly; the tenant wants a responsive landlord who will carry
out the necessary repairs.
18

They may also have interests that do not conflict but simply differ. For example:
1.The tenant may not want to deal with fresh paint, to which he is allergic. The landlord
will not want to pay the costs of repainting all the other apartments.
2.The landlord would like the security of a down payment of the first month’s rent, and
he may want it by tomorrow. The tenant, knowing that this is a good apartment,
may be indifferent on the question of paying tomorrow or later.
When weighed against these shared and divergent interests, the opposed interests in
minimizing the rent and maximizing the return seem more manageable. The shared interests will
likely result in a long lease, an agreement to share the cost of improving the apartment, and efforts
by both parties to accommodate each other in the interest of a good relationship. The divergent
interests may perhaps be reconciled by a down payment tomorrow and an agreement by the
landlord to paint the apartment provided the tenant buys the paint. The precise amount of the rent
is all that remains to be settled, and the market for rental apartments may define that fairly well.
 Agreement is often made possible precisely because interests differ. You and a shoe-seller
may both like money and shoes. Relatively, his interest in the fifty dollars exceeds his interest in a
pair of shoes. For you, the situation is reversed: you like the shoes better than the fifty dollars.
Hence the deal. Shared interests and differing but complementary interests can both serve as the
building blocks for a wise agreement.
How do you identify interests? The benefit of looking behind positions for interests is clear.
How to go about it is less clear. A position is likely to be concrete and explicit; the interests
underlying it may well be unexpressed, intangible, and perhaps inconsistent. How do you go about
understanding the interests involved in a negotiation, remembering that figuring out their interests
will be at least as important as figuring out yours?
Ask “Why?” One basic technique is to put yourself in their shoes. Examine each position
they take, and ask yourself “Why?” Why, for instance, does your landlord prefer to fix the rent—
in a five-year lease—year by year? The answer you may come up with, to be protected against
increasing costs, is probably one of his interests. You can also ask the landlord himself why he
takes a particular position. If you do, make clear that you are asking not for justification of this
position, but for an understanding of the needs, hopes,
19
fears, or desires that it serves. “What’s your basic concern, Mr. Peters, in wanting the lease to
run for no more than three years?”
Ask “Why not?” Think about their choice. One of the most useful ways to uncover interests
is first to identify the basic decision that those on the other side probably see you asking them for,
and then to ask yourself why they have not made that decision. What interests of theirs stand in
the way? If you are trying to change their minds, the starting point is to figure out where their
minds are now.
———————

POINTS FOR DISCUSSION

1.Grande Lum, the former Director of the Community Relations Service at the U.S. Department of
Justice, describes the difference between interests and positions as follows:

Interests are the nuts and bolts of agreements. They are the concerns, drivers, incentives,
underlying needs, and motivators of the parties. They are the reasons people are involved in a
negotiation in the first place. . . .

Negotiation Nugget

Professor Noam Ebner has created a short YouTube video describing the difference between
positions and interests that you can watch here: https://www.youtube.com/
watch?v=CcW5A1c3-Fc.

Interests are not the same as positions. For negotiation purposes, I define positions as the
demands of the parties. Another way of explaining the difference between positions and interests
is to say that positions are what you want, while interests are what you need.
GRANDE LUM, THE NEGOTIATION FIELDBOOK: SIMPLE STRATEGIES TO HELP YOU NEGOTIATE
EVERYTHING 6 (2d ed. 2011). Even though understanding the difference between positions and interests is
easy, it takes practice to get good at recognizing the difference in real negotiations.

2.Professor Leonard L. Riskin believes that understanding the concept of interests is critical for lawyers.
He states: “[T]eaching about interests is my most fundamental goal in nearly every course I teach. I believe
strongly that lawyers who understand and attend to interests will serve their clients better.” Leonard L.
Riskin, Beginning with Yes: A Review Essay on Michael Wheeler’s The Art of Negotiation: How to Improvise
Agreement in a Chaotic World, 16 Cardozo J. Confl. Resol. 605, 617 (2015).

20

3.According to Professor Fisher and Mssrs. Ury and Patton the most powerful interests are basic
human needs such as security, economic well-being, a sense of belonging, recognition, and control over one’s
life. They suggest that negotiations will make little progress as long as one side believes that the other is
threatening the fulfilment of such basic human needs. Christopher W. Moore has categorized interests into
three distinct groups—substantive interests, procedural interests, and psychological interests. Substantive
interests are defined as tangible outcomes or benefits that a party wants to have satisfied during the
negotiation. Procedural interests are preferences about how the dispute resolution process proceeds. There
are two types of psychological interests—how individuals and groups are treated both in the negotiation and
outside of it, and how negotiating parties feel about themselves and their counterparts. CHRISTOPHER W.
MOORE, THE MEDIATION PROCESS: PRACTICAL STRATEGIES FOR RESOLVING CONFLICT 127–30 (4th ed.
2014).

Digging Deeper

How does this compare with the more recognized Maslow’s hierarchy of needs?

4.Negotiators typically have several competing interests at play during any single negotiation, and these
interests may change over time or moment-to-moment. How is it that negotiators should contend with
competing and changing interests?

5.Fully understanding our client’s interests can be extremely challenging. What does it take to achieve
this task? To the extent that conflict tends to evoke emotions, what impact are such emotions likely to have
on our clients’ ability to understand and communicate their interests? On lawyers’ ability to understand and
advance those interests?

6.The advice to focus on interests assumes that negotiators can identify what it is they want to get out
of a negotiation. When asked why they want something, negotiators are expected to know the answer (even
if they choose not to disclose it). But is this as easy as it sounds? Research regarding affective forecasting
indicates that people can make accurate predictions about their general preferences, but they may
miscalculate exactly how happy they will be or how long their happiness will last. This is likely to be
particularly true for “one-shot” negotiators. See Chris Guthrie & David F. Sally, Miswanting, in THE
NEGOTIATOR’S FIELDBOOK: A DESK REFERENCE FOR THE EXPERIENCED NEGOTIATOR 277 (Andrea
Kupfer Schneider & Christopher Honeyman eds., 2006). What is a lawyer to do—be true to the client’s
expressed interests or presume the one-shot client does not really know what she wants? Can a lawyer
disregard the client’s stated interests?

21
 7.As part of their preparation strategy, negotiators should also do their best to identify their negotiation
counterparts’ interests. There may be overlapping, common, or non-competitive interests that can serve as
easy ways to create value in the negotiation. Even if the interests are conflicting, understanding them helps
negotiators learn what kinds of options and offers may appeal to their counterparts. Seeing a situation from
a counterpart’s viewpoint is difficult and will involve assumptions and guesswork. Nevertheless, having some
initial idea of what may be motivating a negotiation counterpart is critical. According to Professor G. Richard
Shell, the best way to think about a counterpart’s interests is to ask this question: “How might it serve the
other party’s interests to help you achieve your goals?” G. RICHARD SHELL, BARGAINING FOR ADVANTAGE:
NEGOTIATION STRATEGIES FOR REASONABLE PEOPLE 82 (2d ed. 2006).

Note

In Chapter 3, we detail specific preparation strategies regarding reservation point and goals;
options; information gathering; and emotions.

8.Professor David Matz has identified four reasons why it may be difficult for a negotiator to really
“know” the other party’s interests:

First, parties have an incentive to lie. As almost all disputes have a significant, often
dominant, distributive aspect, parties can rationally conclude that sharing their interests with their
negotiating opponent can be detrimental to their cause. This incentive to lie, while often lamented,
is well documented. * * *

Second, . . . a further disadvantage in knowing a party’s interests [is that a] demand as

expressed . . . can “stand for” a variety of interests. Almost all the interests . . . , for example, can
be expressed as money. Compounding the difficulty of knowing which interests are “real” is the
fact that it is more culturally acceptable to express some interests than others (e.g. money is
acceptable, vengeance is not).

Digging Deeper

Is it ethically acceptable, from purely a moral perspective, to lie in negotiation? Why or why not?
For a discussion of ethics in negotiation see Chapter 5.

Third, most parties in disputes are not isolated negotiators. They have constituencies,
“second tables,” organizational contexts, or significant others. Any of these influences may be
part of the negotiator’s concerns, an audience to which she will later have to appeal. . . . Moreover,
if the negotiator is representing an organization, the interests within that group may be unfocused,
conflicted, or evolving. The
22
classic line “I’d love to but my boss won’t let me,” captures the . . . problem well. Is the
boss real or a dodge? An interest or a convenience?

The final source of difficulty is the hardest to describe, but it is also perhaps the most
important. Conventionally, a party has interests in the same sense that she has car keys: they are
objective, discrete things. . . . This picture seems to me inaccurate. The interests of a party are
much more like a kaleidoscope than they are like a collection of discrete things. The surface clarity,
 the publicly stated “position,” masks an active fluidity. There are in the kaleidoscope some
recognizable elements, but the boundaries among the elements keep shifting. . . .

David E. Matz, Ignorance and Interests, 4 Harv. Negot. L. Rev. 59, 63–64 (1999).

B.OBJECTIVE CRITERIA
While interests play a key role in negotiation, objective criteria—independent external
standards—typically play a large role in the distributive issues in negotiation. In the following
excerpt, Professor G. Richard Shell explains why objective criteria lend an aura of impartiality,
legitimacy, and fairness in negotiations.

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR

REASONABLE PEOPLE
43–44 (2d ed. 2006)

Why are standards and norms—particularly standards the other side has adopted—such an
important part of bargaining? Because, all else being equal, people like to be seen as consistent and
rational in the way they make decisions.
Psychologists have a name for this need-to-appear-reasonable phenomenon. They call it “the
consistency principle.” Social psychologists have discovered that people have a deep need to avoid
the disjointed, erratic, and uncomfortable psychological states that arise when our actions are
manifestly inconsistent with previously expressed, long-held, or widely shared standards and beliefs.
Most of us have complex “consistency webs” that are interconnected at many levels of our
personality. Because we like to keep these webs intact, we rationalize our actions so they appear (at
least in our own eyes) to be consistent with our prior beliefs. We are also more open to persuasion
when we see a proposed course of action as being consistent with a course we have already adopted.
23

Negotiations are fertile ground for observing the consistency principle at work. Whether we
are aware of it or not, we sometimes feel a tug to agree with the other party when the standards or
norms he or she articulates are consistent with prior statements and positions we ourselves have
taken. We also feel uncomfortable (though we may keep this to ourselves) when the other side
correctly points out that we have been inconsistent in one of our positions or arguments. In short,
standards and norms are—or can be—more than just intellectual pawns in bargaining debates.
They can be strong, motivating factors in the way negotiations proceed.
———————

POINTS FOR DISCUSSION

1.Noting that objective criteria need to be independent, legitimate, and practical, Professor Fisher and
Mssrs. Ury and Patton identify several potential sources of objective criteria, including market value,
precedent, scientific judgment, professional standards, efficiency, costs, what a court would decide, moral
standards, and tradition. ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES:
NEGOTIATING AGREEMENT WITHOUT GIVING IN 86 (3d ed. 2011). What other sources of objective criteria
can you identify?
 2.Dean Chris Guthrie has described objective criteria as the single most important concept for legal
negotiators. Chris Guthrie, Using Bargaining for Advantage in Law School Negotiation Courses, 16 Ohio St. J. Disp.
Resol. 219, 234 (2000). Why might that be?

3.According to Director Lum, in conjunction with the subjective nature of interests, objective criteria
“help[ ] provide a landscape of possible options and help[ ] identify what range of solutions you can
assert.” THE NEGOTIATION FIELDBOOK: SIMPLE STRATEGIES TO HELP YOU NEGOTIATE EVERYTHING 24
(2d ed. 2011).

4.Many negotiators spend a significant amount of time focusing on which standards should form the
basis of a deal. Martin E. Latz calls the discussion about which standards should be used “the standards
dance.” For example, a buyer and seller negotiating the purchase of a house may spend time discussing the
house’s price based on several standards such as the price per square foot of the house, the house’s last
selling price and the increase or decrease in value of the housing market since then, or the comparable price
of similar houses that have recently sold in the same area. Latz admonishes “that you can’t [do the standards]
dance well if you don’t do your homework.” What homework is this? Latz advises negotiators to identify the
various standards that they might use during the negotiation and also to identify the standards the other side
may want to use. Next, he recommends preparing arguments in favor of the standards you prefer and against
the standards you find
24
disadvantageous. MARTIN E. LATZ, GAIN THE EDGE: NEGOTIATING TO GET WHAT YOU WANT 140–
41 (2004).

5.The authors of Getting to Yes add a layer to the standards dance. They argue that, when there is a
dispute as to which standard to apply, the negotiators should “look for an objective basis for deciding
between them, such as which standard has been used by the parties in the past or which standard is more
widely applied.” ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: REACHING
AGREEMENT WITHOUT GIVING IN 90 (3d ed. 2011). Is this realistic?

C.BEST ALTERNATIVE TO A NEGOTIATED AGREEMENT

A negotiator’s best alternative to a negotiated agreement (BATNA) is an incredibly useful
negotiation concept analyzing what alternatives a negotiator has if they are unable to reach an
agreement. BATNAs act as a backstop to keep negotiators from agreeing to deals that they would
be better off passing up. The following excerpt addresses in depth how to develop one’s BATNA.

ROGER FISHER, WILLIAM URY, AND BRUCE PATTON, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN
105–06 (3d ed. 2011)

Vigorous exploration of what you will do if you do not reach agreement can greatly strengthen
your hand. Attractive alternatives are not just sitting there waiting for you; you usually have to
develop them. Generating possible BATNAs requires three distinct operations: (1) inventing a list
of actions you might conceivably take if no agreement is reached; (2) improving some of the more
promising ideas and converting them into practical alternatives; and (3) selecting, tentatively, the
one alternative that seems best.
 The first operation is inventing. If by the end of the month Company X does not make you
a satisfactory job offer, what are some things you might do? Take a job with Company Y? Look in
another city? Start a business on your own? What else? For a labor union, alternatives to a
negotiated agreement would presumably include calling a strike, working without a contract, giving
a sixty-day notice of a strike, asking for a mediator, and calling on union members to “work to
rule.”

Negotiation Nugget

A mediator is a neutral 3rd party that facilitates discussion among disputing parties.

25

The second stage is to improve the best of your ideas and turn the most promising into real
alternatives. If you are thinking about working in Chicago, try to turn that idea into at least one job
offer there. With a Chicago job offer in hand (or even having discovered that you are unable to
produce one) you are much better prepared to assess the merits of a New York offer. While a labor
union is still negotiating, it should convert the ideas of calling in a mediator and of striking into
drafts of specific operational decisions ready for execution. The union might take a vote of its
membership to authorize a strike if settlement is not achieved by the time the contract expires.
The final step in developing a BATNA is selecting the best among the alternatives. If you do
not reach agreement in the negotiations, which of your realistic alternatives do you now plan to
pursue?
Having gone through this effort, you now have a BATNA. Judge every offer against it. The
better your BATNA, the greater your ability to improve the terms of any negotiated agreement.
Knowing what you are going to do if the negotiation does not lead to agreement will give you
additional confidence in the negotiation process. It is easier to break off negotiations if you know
where you’re going. The greater your willingness to break off negotiations, the more forcefully you
can present your interests and the basis on which you believe an agreement should be reached.
———————

POINTS FOR DISCUSSION

1.According to Professor Fisher and Mssrs. Ury and Patton, “[BATNA] is the standard against which
any proposed agreement should be measured. That is the only standard which can prevent you both from
accepting terms that are too unfavorable and rejecting terms it would be in your interest to accept.” GETTING
TO YES 102 (3d ed. 2011). Thus, if a negotiator’s BATNA is more attractive than an offer on the table, the
negotiator should reject the offer. In this respect a negotiator’s BATNA helps determine her reservation
point, the point where a negotiator will refuse an offer and walk away from the deal.

Digging Deeper

What is the difference between one’s BATNA and a reservation point, the point where one will
not go past?

26
 2.What are the respective BATNAs of the parties to a breach of contract claim in settlement
negotiations? Is each party’s best alternative simply going to trial? If so, is a BATNA a helpful concept in the
litigation context? Does the same apply to plea bargain negotiations? If trial is the best alternative, you will
need to determine the likely outcome of trial in order to know when to walk away from a settlement offer.
In other words, you will need to determine the “expected value” of trial. How does one determine the
expected value of trial?

Negotiation Nugget

Negotiators use many tools to determine the “expected value” of trial from decision-trees to data
analytics. For more on decision trees, see Marjorie Aaron, RISK & RIGOR: A LAWYER’S GUIDE
TO DECISION TREES FOR ASSESSING CASES AND ADVISING CLIENTS (2019). For more on data
analytics, see Chapter 7.

3.In the transactional context, you will determine your BATNA (or your “perceived” BATNA) by
looking at other options, sometimes referred to as “comparables”—e.g., other acceptable houses in the
neighborhood in which you wish to live, other acceptable positions in the sorts of firms you wish to join,
other potential business partners for the commercial venture you hope to start. Of course, as part of the
decision-making process you will also need to determine and account for the cost of achieving your BATNA.

Negotiation Nugget

For an in-depth discussion of the expected value of a negotiator’s BATNA, as well as WATNA,
or worst alternative to a negotiated agreement; MLATNA, or most likely alternative to a
negotiated agreement; AATNA, or any alternative to a negotiated agreement see a conversation
among Hiro Aragaki, Sanda Kauffman, and John Lande on Indisputably, the ADR Professors
blog

Lande—Do you use BATNA wrong http://www.indisputably.org/?p=11632

Kauffman—Of ATNAs and BATNAs http://gb8.254.myftpupload.com/?p=12086

Aragaki—Things We Think We Know About BATNA and WATNA http://www.

indisputably.org/?p=12081

Lande—Confusing Dispute Resolution Jargon http://www.indisputably.org/?p=12072

27

4.The strength of a negotiator’s BATNA stems from her interests. The better a BATNA meets a
negotiator’s interests, the better the BATNA. For example, in the real estate context, consider a buyer who
has an interest in a shorter commute. The buyer is looking at a new home that costs $200,000 and that is 10
minutes from work. The buyer’s BATNA is another home that costs $180,000 but is farther away from work.
Is this BATNA strong, moderate, or weak based on its ability to meet the buyer’s interest?

5.Is it possible for a negotiator to improve her BATNA? If so, how does one go about doing so?

6.Negotiators need to do their best to assess their counterpart’s BATNA. As with assessing a
counterpart’s interests and likely preferred objective criteria, this requires thinking from the counterpart’s
perspective about alternatives. This exercise can help negotiators assess the counterpart’s desire for an
agreement and the parties’ relative leverage. These assessments can lead to important information gathering
strategies.

7.Professor James K. Sebenius cautions negotiators against thinking that their BATNA
“does not involve negotiation, that it should mainly be thought of as an outside option independent of the other side,
and that it is primarily a last resort or only relevant if you feel weak.” He argues instead that negotiators should
think about their “best alternative with respect to a specific counterpart, a particular proposed agreement or
class of agreements, and/or a definite time period or stage in the negotiation process.” He distinguishes three
different ways in which a negotiator might say “no” and the interplay of such moves with the negotiator’s
BATNA:

Note

Information gathering and information exchange are topics discussed later in Chapter 3.

First is a “tactical no,” simply turning down a proffered deal in hopes of generating a better
offer later in the process.

Second, is a “no to re-set.” . . . [T]his “no” may occur at any stage of the process. It can
entail moves “away from the table” to improve your own no-deal option and/or worsen that of
the other side. You often employ the “no to re-set” with the intention of continuing to bargain
or returning to active negotiation with your original counterpart, but in a setup that you have
more actively modified to be more conducive to reaching your preferred deal.

Third, you may utter and mean a “final no,” or the course of action you’d take if a
sufficiently desirable agreement simply does not seem feasible with your counterpart.

28

If and when you utter a “tactical no,” a “no to re-set,” or a “final no,” you should assess the
implications by analyzing the same questions: how do you envision and evaluate the process
playing out from the point of actually conveying your “no”? What does this mean for your
minimum conditions going forward? Theirs? The prospects for a more favorable deal? And so
on.

Jim Sebenius, BATNAs in Negotiation: Common Errors and Three Kinds of “No”, 33 Negot. J. 89, 97–98 (2017).

8.A negotiator’s BATNA can provide the negotiator with a source of power or situational advantage
in negotiation. As Fisher, Ury, and Patton put it, “People think of negotiating power as being determined by
resources like wealth, political connections, physical strength, friends, and military might. In fact, the relative
negotiating power of two parties depends primarily upon how attractive to each is the option of not reaching
agreement.” Id. at 102.

For example, it is easily understood that a job applicant who already has another job or offer has more
power in a job interview. But the same principle obtains in less obvious situations. Consider, for example,
that you want to buy a new television. You go into your nearby big-box store and find just what you are
looking for at a cost of $2,999, plus installation kit. You can give yourself additional power in the negotiation
with the store by learning how much you would pay if you purchased the item elsewhere, such as through
an online retailer or nearby store, and then exercise your power by asking the retailer if it will match the price
you found elsewhere.
 Negotiation Nugget

Situational advantage in negotiation is more colloquially known as leverage, which is discussed

below.

9.Professor Russell Korobkin offers the important observation that it is one’s perceived BATNA, as
opposed to one’s actual BATNA, that is the true source of power in negotiation. Russell Korobkin, Bargaining
Power as Threat of Impasse, 87 Marq. L. Rev. 867, 869–70 (2004). Why might that be?

10.We can think of power in negotiation as the ability to get what we want. A related concept is
leverage—that is, the ability to use power or the situation to your advantage in a negotiation. Professor Shell
offers the following easy-to-remember test to assess which party has more leverage in a negotiation:

Ask yourself, as of the moment when you make the assessment, which party has the most
to lose from no deal. The party with the most to lose has the least leverage; the party with the
least to lose has the most leverage; and both parties have roughly equal leverage when they both
stand to lose equivalent amounts should the deal fall through.

29

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR REASONABLE

PEOPLE 104 (2d ed. 2006). Note that the party with the least to lose is not always the party that appears to
have more money, resources, and power.

D.THE NEGOTIATOR’S DILEMMA

One of the most fundamental features of negotiation is what is known as the Negotiator’s
Dilemma, which at its essence is how negotiators must engage in two separate but complementary
negotiation tasks—claiming or distributing value, often described as “dividing the pie,” and
potentially creating new value from the opportunities that the negotiation presents, often described
as “expanding the pie.” Which task a negotiator emphasizes can vary by negotiation or even issue
by issue within a negotiation. The questions of how to engage in each task, which task should
receive more focus, and how these two tasks push and pull against each other consume most of
the discussions concerning negotiation.

1.The Negotiator’s Dilemma as a Theoretical Construct

JAMES K. SEBENIUS, NEGOTIATION ANALYSIS: A CHARACTERIZATION AND REVIEW

38 Management Science 18, 28–30 (Jan. 1992)

The lure of joint action lies in the prospect of each party’s doing better than its alternatives to
agreement. It is therefore crucial to understand the bases for joint gains and to envision possible
agreements. In most negotiations, the potential value of joint action is not fully obvious at the outset.
Creating Value. “Creating value”—that is, reaching mutually beneficial agreements, improving
them jointly, and preventing conflict escalation—requires an approach often associated with “win-
win,” “integrative,” or “variable sum” encounters. To generate gainful options, it is normally
helpful for information to be shared openly, communication enhanced, creativity spurred, joint
problem-solving emphasized, and hostilities productively channeled. Many analysts offer insights
into “creating value” by cooperative behavior. Regardless of whether one adopts a cooperative
style or not, it is useful to have an analytic guide as to the underlying bases for joint gains. Three
distinct classes of factors are at the core of all possible mutual benefits from cooperation; these
factors are the raw material from which negotiators can “create value.”
30

First, apart from pure shared interests, negotiators may want the same settlement on some
issues, and their mere agreement may be able to produce it. Furthering their relationship, or acting
in accord with an identical interest, such as a shared vision, ideology or norm of equity, may create
value in an agreement. Interests, such as “good relationships,” are analogous to the economist’s
“public goods” in that all sides can simultaneously “consume” them without diminution.
Second, where economies of scale, collective goods, alliances, or requirements for a minimum
number of parties exist, agreement among similar bargainers can create value.
Third, though many people instinctively seek “common ground” and believe that “differences
divide us,” it is often precisely the differences among negotiators that constitute the raw material for
creating value. Each class of difference has a characteristic type of agreement that makes possible
its conversion into mutual benefit. For example, differences in relative valuation suggest joint gain
from trades or from “unbundling” differently valued attributes. Differences in tax status, liquidity,
or market access suggest arbitrage. Complementary technical capacities can be profitably combined.
Probability and risk aversion differences suggest contingent agreements or bets. Differences in
time preference suggest altering schedules of payments and other actions. . . . These observations
point up value of a “differences orientation” with knowledge of the characteristic “technologies”
for converting differences into mutual benefit.
***
Claiming Value. Crucial aspects of most negotiations, however, are primarily “distributive,”
“win-lose,” or constant-sum; that is, at some points in the process, increased value claimed by one
party implies less for others. For example, in choosing a strategy for the highly restrictive class of
negotiations involving “first and final offers,” one must balance the value to be claimed against the
chance and cost of impasse. Although value can be created merely by reaching an accord in some
cases, the parties’ interests can conflict diametrically over the terms. And where value can be
created by moves beyond the most obvious agreements that value must still be apportioned. Several
broad classes of tactics used for “claiming value” in these kinds of bargains have been explored.
Such tactics include: shaping perceptions of alternatives to agreement, making commitments,
influencing aspirations, taking strong positions, manipulating patterns of concessions, holding
valued issues “hostage,” linking issues and interests for leverage, misleading other parties, as well
as exploiting cultural and other expectations.
31
By means of these tactics, one party seeks advantage by influencing another’s perceptions of
the bargaining range.
Managing the Tension Between Creating and Claiming Value: The Negotiators’ Dilemma. If the
processes of creating and claiming value were separable, it would be possible to analyze and
prescribe a separate approach to each task. Unfortunately, the fact that in general they are not
undermines much otherwise useful advice (that, for example, presumes “win-win” situations to
have no “win-lose” aspects, or “integrative” bargains to be unrelated to “distributive” ones) . . . .
This has potent consequences for negotiation analysis. In general, the benefits of cooperation
are not fully known at the outset of a negotiation. Moreover, the manner by which parties try to
create value, or press out toward the potential Pareto frontier, normally influences the allocation
of that value. Approaches that tend to be effective in claiming value tend to be highly dysfunctional
for creating it. Yet, openness and information revelation aimed at value creating can be exploited
by a “value claimer.” Colloquially, the parties often do not know how large a pie they can make.
The way in which they attempt to expand the pie often affects its final division, while each side’s
efforts to get a larger share of the pie often prevent its expansion in the first place—and may lead
to no pie at all, or even to a fight.

Negotiation Nugget

The Pareto frontier is the set of options that achieve pareto efficiency or pareto optimality, where
maximum value is created such that no one individual can be made better off without claiming
value from another individual.

Each party tends to reason over the course of an encounter as follows: If the other parties are
open and forthcoming, I can take advantage of them and claim a great deal of value; thus I should
adopt a value-claiming stance. By contrast, if the other parties are tough and adopt value-claiming
stances, I must also adopt such a stance in order to protect myself. Either way, a strong tendency
operating on all parties often leads to the result that competitive moves to claim value individually drive out
cooperative moves to create it jointly. Outcomes of this dynamic include poor agreements, dead locks,
and conflict spirals. This tendency, closely related in structure to the famous prisoner’s dilemma,
was dubbed the “Negotiator’s Dilemma.”
In analyzing the large number of tactics, approaches, and procedures offered to improve the
effectiveness of negotiation, it is useful to focus on
32
how a given suggestion manages the inherent tension between creating and claiming value.
Many approaches naively ignore or deny the tension by simply advocating either a “win-win” or a
“win-lose” philosophy. Yet, consider the successful characteristics of a tit-for-tat approach as
analyzed by Robert Axelrod. To be forthcoming permits the exchange of information essential to get
the joint process of creating value underway; to be provocable prevents exploitation of this
openness by a value-claimer; while being forgiving looks beyond a forceful response to attempted
exploitation to getting the cooperative process back on track, rather [than] seeing it escalate. In
short, this approach offers one coherent response to managing the creating/claiming tension.
———————

POINTS FOR DISCUSSION

1.When speaking about the interaction of creating and claiming value, the term “value” is often
misunderstood simply as the financial value in the transaction. Professors Deepak Malhotra and Max H.
Bazerman describe value as “whatever people find useful or desirable” and contend that it can be measured
by numerous metrics, including happiness and utility, in addition to dollars. DEEPAK MALHOTRA & MAX
BAZERMAN, NEGOTIATION GENIUS: HOW TO OVERCOME OBSTACLES AND ACHIEVE BRILLIANT RESULTS
AT THE BARGAINING TABLE AND BEYOND 16 (2007). What other metrics might one use to measure value?
How does one measure happiness or utility?

2.Methods of creating value in negotiation often focus on leveraging differences between the
negotiating parties such as their valuations of good or services, expectations about the future, time
preferences, priorities, and comfort levels with risk. How does focusing on these issues help create value?
Professors Malhotra and Bazerman also suggest thinking about other methods, such as using contingency
contracts, adding issues to the negotiation, and logrolling. Logrolling is simply the act of trading across issues,
which is easier the more issues there are in a negotiation. DEEPAK MALHOTRA & MAX BAZERMAN,
NEGOTIATION GENIUS: HOW TO OVERCOME OBSTACLES AND ACHIEVE BRILLIANT RESULTS AT THE
BARGAINING TABLE AND BEYOND 61 (2007). Professors Robert R. Mnookin and Scott C. Peppet and Mr.
Andrew S. Tulumello identify two other areas for creating value—taking advantage of non-competitive
similarities, interests that truly do not compete, and economies of scale and scope. ROBERT H. MNOOKIN,
SCOTT C. PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN
DEALS AND DISPUTES 16 (2000). What else might help create value in a negotiation? What are economies of
scope and scale?

33

3.Once the value is created, what are the rules associated with claiming value? Should it be divided
equally, equitably, or some other way? Without clear principles to determine the distribution, the negotiation
may become a highly competitive endeavor. How should negotiators best proceed in this portion of the
negotiation? See Morton Deutsch, Equity, Equality, and Need: What Determines Which Value Will Be Used as the
Basis of Distributive Justice?, 31 J. Soc. Issues 137 (Summer 1975); David M. Messick, Equality, Fairness, & Social
Conflict, 8 Soc. Just. Res. 153 (1995).

4.In a passage in the book THE MANAGER AS NEGOTIATOR, where David Lax and James Sebenius
first described the Negotiator’s Dilemma, they say:

Creating value requires openness, communication, learning, ingenuity, joint problem solving,
and preventing conflict escalation. Claiming value involves advantageously shaping opponents’
perceptions of the bargaining range, often by manipulating alternatives and aspirations, making
commitments, holding prime values hostage, misleading, and exploiting cultural expectations.

Id. at 154. How is it that creating and claiming value can be bound together when the two are described in
such Jekyll and Hyde terms? Does the authors’ terminology suggest a preference for value creation over
value claiming? If there is such a stark difference in creating and claiming value, how does one smoothly shift
from one to the other?

2.The Negotiator’s Dilemma in Practice

In this subsection we take a closer look at value claiming and value creation, and at their
implications for how negotiators approach the task of negotiating. Negotiators need to master both
tasks, which requires them to understand how each task works and how to blend them to work
together.
Generally speaking, when claiming value, negotiators are engaged in distributing what is
assumed to be a limited resource—such as money, golf balls, or lima beans—and the parties’ task
is to decide whether and how to divide it. In such a situation, the parties’ positions conflict; what
one gains, the other must lose. The negotiators are, in a word, adversaries. When emphasizing value
claiming, a negotiator naturally fosters strategies designed to maximize the client’s position with
respect to the resource in question. And typical tactics include those designed to uncover as
34
much as possible about the other side’s situation and simultaneously mislead the other side as
to the negotiator’s own situation.

Digging Deeper

This distributive task is what most people think of when they think of negotiation. Why is this
so?

Emphasizing value creation is quite different. The negotiators acknowledge that they share,
and must solve, a problem. This approach seeks to create joint gains by meeting the interests or
underlying needs of all parties to the dispute or transaction, and, accordingly, tends to produce
strategies designed to promote the disclosure and relevance of these underlying needs. The
recommended techniques include those intended to increase the number of issues for bargaining
or to “expand the pie” before dividing it. Negotiation experts disagree as to whether it is possible
to create value in every—or even the vast majority of—negotiations, but they do agree that a
common feature of negotiation is the untapped potential for value creation.
Much of the negotiation literature makes it sound like the approach to negotiation is an either-
or proposition. Either you are a negotiator who focuses on things like claiming value or you are a
negotiator who focuses on things like creating value. By now you should understand that we
disagree with such views: we believe that negotiators need to be good at the tasks associated with
both claiming and creating value. While we may generally emphasize value creation, because we
would like to see negotiators achieve more optimal solutions and because it tends to be a new
concept to negotiation students, we recognize that all negotiators need to engage in value claiming.
Below, we introduce three generalized approaches to negotiation—one based on claiming
value, another based on creating value, and a third, a hybrid mixing the two approaches, where
negotiators attempt to be balanced by trying not to appear to favor one side of the negotiator’s
dilemma over the other. Legal negotiators should be acquainted with all three approaches because
they most certainly will encounter and use all of them in practice.

a.Value Claiming

In the following excerpt, Professor Russel Korobkin focuses on the distributive issues
associated with negotiation, critical matters for value-claiming in negotiation.

RUSSELL KOROBKIN, A POSITIVE THEORY OF LEGAL NEGOTIATION

88 Geo. L. J. 1789, 1792–94 (2000)

In any negotiation, the maximum amount that a buyer will pay for a good, service, or other
legal entitlement is called his “reservation point” or,
35
if the deal being negotiated is a monetary transaction, his “reservation price” (RP). The
minimum amount that a seller would accept for that item is her RP. If the buyer’s RP is higher
than the seller’s, the distance between the two points is called the “bargaining zone.” Reaching
agreement for any amount that lies within the bargaining zone is superior to not reaching an
agreement for both parties, at least if they are concerned only with the transaction in question.
For example, suppose Esau, looking to get into business for himself, is willing to pay up to
$200,000 for Jacob’s catering business, while Jacob, interested in retiring, is willing to sell the
business for any amount over $150,000. This difference between Esau’s and Jacob’s RPs creates a
$50,000 bargaining zone. At any price between $150,000 and $200,000, both parties are better off
agreeing to the sale of the business than they are reaching no agreement and going their separate
ways.
The same structure used to describe a transactional negotiation can be used to describe a
dispute resolution negotiation. Suppose that Goliath has filed suit against David for battery. David
is willing to pay up to $90,000 to settle the case out of court—essentially, to buy Goliath’s legal
right to bring suit—while Goliath will “sell” his right for any amount over $60,000. These RPs
create a $30,000 bargaining zone between $60,000 and $90,000. Any settlement in this range would
leave both parties better off than they would be without a settlement.
In contrast, if the seller’s RP is higher than the buyer’s RP, there is no bargaining zone. In this
circumstance, there is no sale price that would make both parties better off than they would be by
not reaching a negotiated agreement. Put another way, the parties would be better off not reaching
a negotiated agreement. If Jacob will not part with his business for less than $150,000 and Esau
will not pay more than $100,000 for it, there is no bargaining zone. If David will pay up to $50,000
to settle Goliath’s claim, but Goliath will not accept any amount less than $60,000, again there is
no bargaining zone. An agreement in either case would leave at least one party, and possibly both
parties, worse off than if they were to decide not to make a deal.

Note

Notice that Professor Korobkin is discussing negotiators determining their reservation points, a
critical part of negotiation preparation discussed in Chapter 3.

36

Knowledge of the parameters of the bargaining zone, which is created by the two parties’
reservation points, is the most critical information for the negotiator to possess. Those parameters
tell the negotiator both whether any agreement is possible and, if so, identify the range of possible
deal points. At the same time, the negotiator has an interest in adjusting the parameters of the
bargaining zone to his advantage. A buyer not only wants to know his and the seller’s RP, he wishes
to make both lower, or at least make both appear lower to the seller. This shifts the zone of possible
deal points lower, increasing the chances that the seller will ultimately agree to a relatively low price.
Experimental evidence in fact confirms that negotiators with more favorable RPs (that is, lower
for buyers, higher for sellers) reach more profitable agreements than negotiators with less favorable
RPs.

Negotiation Nugget
 Platforms such as SmartSettle One provide negotiators a technological solution to quickly and
easily determine if there is a positive bargaining zone without revealing their reservation points
to each other.

Esau wants to know his and Jacob’s RPs, but he also would like to shift both numbers, and
therefore the bargaining range, lower. Assuming Esau knows his RP is $200,000 and learns Jacob’s
is $150,000, Esau knows that an agreement is possible for some amount greater than the latter
figure and less than the former. If he could reduce Jacob’s RP to $120,000 and his own to $170,000,
however, the bargaining zone would remain the same size, but its changed parameters would
suggest that Esau would be likely to buy the business for a lower price. Esau could achieve the
same advantage if Jacob believes the parties’ RPs are $120,000 and $170,000 respectively, even if
the RPs objectively are $150,000 and $200,000.
The existence of a bargaining zone is necessary for a negotiated agreement, and the parameters
of the bargaining zone—defined by both parties’ RPs—define the set of possible “deal points.”
———————

POINTS FOR DISCUSSION

1.The value-claiming focus is based on certain assumptions:

• That the principal goal of each party is to maximize its own economic gain;

37

• That the outcome of the negotiation will likely be determined by two separate,
individualistic cost-benefit analyses, rather than through any joint exploration of
what is most suitable for both parties;

• That the process will be closed and deceptive, with each party trying to mislead or
at least to conceal information about its own position while seeking to learn as
much as it can about the other’s position; and

• That “deal points” fall along a continuum, and movement favorable to one party
is inevitably unfavorable to the other.

Do you believe these assumptions to be accurate? Are there any other assumptions embedded in this
approach? What should a negotiator with this focus do if these assumptions turn out to be unfounded?

2.Commentators have used different terms when categorizing negotiators whose primary focus in
negotiation is consistent with the tasks associated with the value-claiming aspects of negotiation. For example,
some have labeled these activities the “adversarial” approach to negotiation. It has also been described as
the “positional” approach to negotiation. See ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING
TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN (3d ed. 2011). To see it described as “distributive,”
see DAVID LAX & JAMES SEBENIUS, THE MANAGER AS NEGOTIATOR: BARGAINING FOR COOPERATION
AND COMPETITIVE GAIN (1986); HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION (1982).
Regardless of the label employed, when focusing on claiming value, negotiators often engage in zero-sum
thinking in which the gains one side receives are at the expense of the other.
 Negotiation Nugget

Zero-sum thinking is a cognitive bias that can misperceive situations as a zero-sum game and
limit available options because of the false belief that one side’s gain is the other side’s loss.

3.If the negotiator’s reservation points overlap, meaning that the lowest price the seller will accept is
lower than the highest price the buyer will pay, there is a positive bargaining range or zone of possible
agreement (ZOPA), and the parties should be able to reach an agreement. Using distributive bargaining
strategies such as anchoring, aspirational thinking, and objective criteria, negotiators can effectively claim
more value within the ZOPA. However, if the negotiators’ reservation points do not overlap and there is no
ZOPA, the negotiators should pursue their respective BATNAs. Besides ethical issues, why might it be
disadvantageous for a negotiator to misrepresent his reservation point?

38

4.Critiques of excessive focus on value claiming in negotiation typically emphasize the negative effects
of refusing to share information—e.g., inefficient outcomes or no deal when there should be one. See
generally ROGER FISHER, WILLIAM URY & BRUCE PATTON, GETTING TO YES: NEGOTIATING AGREEMENT
WITHOUT GIVING IN (3d ed. 2005); G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION
STRATEGIES FOR REASONABLE PEOPLE (2d ed. 2006); Robert H. Mnookin, Strategic Barriers to Dispute
Resolution: A Comparison of Bilateral and Multilateral Negotiations, 8 Harv. Neg. L. Rev. 1, 4–7 & 11–14 (2003).
Professor Catherine Tinsley and her colleagues found that competition and incentives to refrain from
disclosing information result in less than optimal negotiation results for all parties. Catherine Tinsley,
Kathleen M. O’Connor & Brandon A. Sullivan, Tough Guys Finish Last: The Perils of a Distributive Reputation, 88
Org. Beh. & Human Decision Processes 621, 621 (2002). Professor Andrea Kupfer Schneider studied the
effectiveness of legal negotiators and found that an overly reliant focus on claiming value was viewed as
being one of the less effective methods of negotiation. Andrea Kupfer Schneider, Shattering Negotiation Myths:
Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Neg. L. Rev. 143, 196 (2002). How would
someone who is a proponent of a strong focus on value claiming in negotiation respond to these claims?

b.Value Creating

In this excerpt, Professor Carrie Menkel-Meadow describes how the distributive issues in
negotiation only respond to one kind of need, financial interests. She argues that negotiators should
expand their horizons to focus on the underlying actual needs, which we would describe as interests,
a focus that may result in the distributive issues in negotiation playing out in different ways.

CARRIE J. MENKEL-MEADOW, TOWARD ANOTHER VIEW OF LEGAL NEGOTIATION: THE

STRUCTURE OF PROBLEM SOLVING
31 UCLA L. Rev. 754, 794–801 and 840 (1984)

Problem solving is an orientation to negotiation which focuses on finding solutions to the

parties’ sets of underlying needs and objectives. The problem-solving conception subordinates
strategies and tactics to the process of identifying possible solutions and therefore allows a broader
range of outcomes to negotiation problems.
***
 Parties to a negotiation typically have underlying needs or objectives—what they hope to
achieve, accomplish, and/or be compensated for as a result of the dispute or transaction. Although
litigants typically ask for relief in the form of damages, this relief is actually a proxy for more basic
needs or
39
objectives. By attempting to uncover those underlying needs, the problem-solving model
presents opportunities for discovering greater numbers of and better quality solutions. It offers the
possibility of meeting a greater variety of needs both directly and by trading off different needs,
rather than forcing a zero-sum battle over a single item.
The principle underlying such an approach is that unearthing a greater number of the actual
needs of the parties will create more possible solutions because not all needs will be mutually
exclusive. As a corollary, because not all individuals value the same things in the same way, the
exploitation of differential or complementary needs will produce a wider variety of solutions which
more closely meet the parties’ needs.
***
It is also important to recognize that both parties have such needs. For example, in [a]
personal injury case, the defendant may have the same need for vindication or retribution if he
believes he was not responsible for the accident. In addition, the defendant may need to be
compensated for his damaged car and injured body. He will also have needs with respect to how
much, when and how he may be able to pay the monetary damages because of other uses for the
money. A contract breaching defendant may have specific financial needs such as payroll,
advertising, purchases of supplies, etc.; defendants are not always simply trying to avoid paying a
certain sum of money to plaintiffs. In the commercial case, the defendant may have needs similar
to those of the plaintiff: lost income due to the plaintiff’s failure to pay on the contract, and, to the
extent the plaintiff may seek to terminate the relationship with the defendant, a steady source of
future business.
***
To the extent that negotiators focus exclusively on “winning” the greatest amount of money,
they focus on only one form of need. The only flexibility in tailoring an agreement may lie in the
choice of ways to structure monetary solutions, including one shot payments, installments, and
structured settlements. By looking, however, at what the parties desire money for, there may be a
variety of solutions that will satisfy the parties more fully and directly. For example, when an injured
plaintiff needs physical rehabilitation, if the defendant can provide the plaintiff directly with
rehabilitation services, the defendant may save money and the plaintiff may gain the needed
rehabilitation at lower cost. In addition, if the defendant can provide the plaintiff with a job that
provides physical rehabilitation, the plaintiff may not only receive income which could be used to
purchase more
40
rehabilitation, but be further rehabilitated in the form of the psychological self-worth which
accompanies such employment. Admittedly, none of these solutions may fully satisfy the injured
plaintiff, but some or all may be equally beneficial to the plaintiff, and the latter two may be
preferable to the defendant because they are less costly.
 Understanding that the other party’s needs are not necessarily as assumed may present an
opportunity for arriving at creative solutions. Traditionally, lawyers approaching negotiations from
the adversarial model view the other side as an enemy to be defeated. By examining the underlying
needs of the other side, the lawyer may instead see opportunities for solutions that would not have
existed before based upon the recognition of different, but not conflicting, preferences.
An example from the psychological literature illustrates this point. Suppose that a husband
and wife have two weeks in which to take their vacation. The husband prefers the mountains and
the wife prefers the seaside. If vacation time is limited and thus a scarce resource, the couple may
engage in adversarial negotiation about where they should go. The simple compromise situation, if
they engage in distributive bargaining, would be to split the two weeks of vacation time spending
one week in the mountains and one week at the ocean. This solution is not likely to be satisfying,
however, because of the lost time and money in moving from place to place and in getting used to
a new hotel room and locale. In addition to being happy only half of the time, each party to the
negotiation has incurred transaction costs associated with this solution. Other “compromise”
solutions might include alternating preferences on a year to year basis, taking separate vacations,
or taking a longer vacation at a loss of pay. Assuming that husband and wife want to vacation
together, all of these solutions may leave something to be desired by at least one of the parties.
By examining their underlying preferences, however, the parties might find additional
solutions that could make both happy at less cost. Perhaps the husband prefers the mountains
because he likes to hike and engage in stream fishing. Perhaps the wife enjoys swimming,
sunbathing and seafood. By exploring these underlying preferences the couple might find vacation
spots that permit all of these activities: a mountain resort on a large lake, or a seaside resort at the
foot of mountains. By examining their underlying needs the parties can see solutions that satisfy
many more of their preferences, and the “sum of the utilities” to the couple as a whole is greater
than what they would have achieved by compromising.
41

In addition, by exploring whether they attach different values to their preferences they may
be able to arrive at other solutions by trading items. The wife in our example might be willing to
give up ocean fresh seafood if she can have fresh stream or lake trout, and so, with very little cost
to her, the couple can choose another watersport where the hikes might be better for the husband.
By examining the weight or value given to certain preferences the parties may realize that some
desires are easily attainable because they are not of equal importance to the other side. Thus, one
party can increase its utilities without reducing the other’s. This differs from a zero-sum conception
of negotiation because of the recognition that preferences may be totally different and are,
therefore, neither scarce nor in competition with each other. In addition, if a preference is not used
to “force” a concession from the other party (which as the example shows is not necessary), there
are none of the forced reciprocal concessions of adversarial negotiation.
The exploitation of complementary interests occurs frequently in the legal context. For
example, in a child custody case the lawyers may learn that both parties desire to have the children
some of the time and neither of the parties wishes to have the children all of the time. It will be
easy, therefore, to arrange for a joint custody agreement that satisfies the needs of both parties.
Similarly, in a commercial matter, the defendant may want to make payment over time and the
plaintiff, for tax purposes or to increase interest income, may desire deferred income.
 ***
. . . The creative problem-solving approach outlined here depends on two structural
components: (1) identifying the parties’ underlying needs and objectives, and (2) crafting solutions,
first by attempting to meet those needs directly, and second, by attempting to meet more of those
needs through expanding the resources available. By utilizing such a framework for negotiations,
the parties should recognize the synergistic advantage of such an approach over the adversarial and
manipulative strategies of zero-sum negotiations. Parties should be able to achieve solutions to
disputes that would not have been possible in court-ordered resolutions.

Note

In this excerpt, Professor Menkel-Meadow also discusses coming up with potential options, a
foundational task discussed in Chapter 3.

———————

42
POINTS FOR DISCUSSION

1.The value-creation approach is based on certain assumptions:

• That the principal goal for each party is to meet its underlying needs and interests
rather than simply beating the other side;

• That the outcome of the negotiation will likely be determined by a joint

exploration of what is most appropriate for both parties;

• That the process will be an open and creative one in which each party shares
information with the other about its underlying needs and interests; and

• That parties can produce joint gains by capitalizing on both shared and different
interests.

Do you believe these assumptions to be accurate? Are there any other assumptions embedded in this
approach? What should a negotiator with this orientation do if these assumptions turned out to be
unfounded?

2.Commentators have used different terms when categorizing negotiators whose primary focus in
negotiation is consistent with the tasks associated with the value-creating aspects of negotiation. For example,
some have labeled these activities the “problem-solving” approach to negotiation. It has also been referred
to as “principled,” see Roger Fisher, William Ury & Bruce Patton, GETTING TO YES: NEGOTIATING
AGREEMENT WITHOUT GIVING IN 84 (3d ed. 2011). To see it described as “integrative,” see DAVID LAX &
JAMES SEBENIUS, THE MANAGER AS NEGOTIATOR: BARGAINING FOR COOPERATION AND COMPETITIVE
GAIN (1986); HOWARD RAIFFA, THE ART AND SCIENCE OF NEGOTIATION (1982). Regardless of the label
employed, this approach posits that negotiation is a collaborative exercise in which the parties work together
to satisfy their interests and create joint gains.

3.The most popular explanation of focusing on value creation in negotiation appears in ROGER FISHER,
WILLIAM URY, & BRUCE PATTON, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING
IN (3d ed. 2011). The authors instruct negotiators using this method to attempt to achieve a wise, efficient,
and amicable outcome, not merely to maximize gains. In contrast to the value-claiming orientation—which
focuses solely on the substance of the negotiation—the value-creation orientation focuses on the substance,
the process, and the relationship between the negotiators.

4.Several criticisms have been leveled at too much focus on value creation in negotiation. Some scholars
have questioned theorists’ contention that integrative, or value-creating, opportunities are as abundant as
suggested. See, e.g., Russell Korobkin, A Positive Theory of Legal Negotiation, 88 Geo. L.J. 1789 (2000); Gerald
Wetlaufer, The Limits of Integrative Bargaining, 85 Geo. L.J. 369 (1996). Others claim that it fails to give sufficient
weight to the distributive, or value-claiming, side of the
43
Negotiator’s Dilemma. James J. White, The Pros and Cons to Getting to Yes, 34 J. Legal Ed. 115, 121 (1984),
Russell Korobkin, Against Integrative Bargaining, 58 Case West. Res. L. Rev. 1323 (2008). How would a
proponent of the value-creating approach to negotiation respond to these claims?

5.Professors Robert Mnookin and Scott Peppet, and Mr. Andrew S. Tulumello argue that there is
tension between two components of a negotiator’s approach—assertiveness and empathy—that seem to
parallel the distinction between a value creating mindset and a value claiming mindset. They define empathy
as “demonstrating an understanding of the other side’s needs, interests, and perspective, without necessarily
disagreeing.” On the other hand, they define assertiveness as “[the] advocacy of one’s own needs, interest,
and perspective.” ROBERT H. MNOOKIN, SCOTT R. PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING:
NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES 47 (2000).

Are these qualities really in tension? Can negotiators exhibit both empathy and assertiveness? It is worth
observing that empathy has affective, cognitive, and behavioral dimensions. Professor Mnookin and his
colleagues focus on the latter two dimensions. Experimental research suggests that negotiators able to
exercise the cognitive component of empathy—that is, perspective-taking—obtain superior outcomes in
negotiation. See Adam D. Galinsky, William W. Maddux, Debra Gilin & Judith B. White, Why It Pays To Get
Inside the Head of Your Opponent: The Differential Effects of Perspective Taking and Empathy in Negotiations, 19 Psychol.
Sci. 378, 378–84 (2008). Professor Alyson Carrel describes the tension between assertion and empathy as
one that plays out between artificial intelligence and emotional intelligence, arguing that as technology is
increasingly able to handle distributive components of negotiation, lawyers must increasingly focus on
emotional intelligence and empathy in order to distinguish their value as counselors at law and problem-
solvers. See Legal Intelligence Through Artificial Intelligence Requires Emotional Intelligence: A New Competency Model
for the 21st Century Legal Professional, 35 Ga. St. U. L. Rev. 1153 (2019).

Digging Deeper

Do either of these foci—creating or claiming value—seem better able to address the behavioral,
cognitive, and emotional dimensions of conflict?

c.Mixing Approaches

The following excerpt examines the use of multiple approaches while negotiating. Specifically,
Professor Charles Craver argues that the most successful negotiators use a mix of value-creating
and value-claiming approaches.
44
 CHARLES B. CRAVER, THE IMPACT OF NEGOTIATOR STYLES ON BARGAINING
INTERACTIONS
35 Am. J. Trial Advoc. 1, 10–13, 17 (2011)

Skilled negotiators are able to combine the most salient traits associated with the cooperative
problem-solving and the competitive adversarial styles. They work to maximize their client’s
returns, but they endeavor to accomplish this objective in a courteous and seemingly cooperative
manner. They appreciate the childhood admonition expressed by many parents that “you get more
with honey than you do with vinegar.” They also recognize the importance of expanding the overall
pie divided between the bargaining parties. Unlike less-skilled bargainers, who think of negotiation
interactions as “fixed pie” situations in which one side’s gain is the other side’s corresponding loss,
skilled negotiators understand that in multi-issue interactions the participants usually value the
various items quite differently. Even when the principal issue is money, the parties can agree to
future payments or in-kind payments to generate more efficient final agreements. Adroit
negotiators appreciate the inherent tension between “value creation” and “value claiming.”
Although they strive to claim more of the distributive items desired by both sides, they look for
integrative terms valued more by one side than by the other in recognition of the fact that if these
terms are resolved efficiently, both sides will achieve better results. They are quite open with respect
to underlying client interests to enable the parties to look for areas of possible joint gain, but they
frequently over- or under-state the degree to which their clients actually want the various items to
enable them to obtain more of the joint surplus than they give to their opponents. If they think
their adversaries really want several issues their side does not value highly, they may exaggerate
their interest in those terms, making it appear that they are conceding more than they actually are.
If their side really desires specific items they believe the opposing party does not consider important,
they may understate their actual interest in those terms enabling them to obtain these items in
exchange for less significant concessions.

Negotiation Nugget

Professor Craver is distinguishing between negotiation style (cooperative/competitive)

and approach (value-creation/value-claiming).

Competitive problem-solvers recognize that if the parties maximize the way in which the
integrative terms are resolved, it is easier for them to claim
45
more of the distributive items. Although they may manipulate opponent perceptions with
respect to the degree to which they value particular terms, they do not employ truly deceitful tactics.
They realize a loss of credibility would seriously undermine their capacity to obtain beneficial
accords. Even though they hope to obtain a greater share of the joint surplus, they are not win-
lose competitive adversarial negotiators, nor are they the win-win cooperative problem-solvers they
appear to be. As competitive problem-solvers, they employ a hybrid style which Ronald Shapiro
and Mark Jankowski characterize as: “WIN-win: big win for your side, little win for theirs.” They
understand that the imposition of poor terms on their adversaries does not necessarily benefit their
own clients. All other factors being equal, they wish to maximize opponent satisfaction, as long as
this does not require significant concessions with respect to terms valued by their own side. At the
conclusion of bargaining encounters, they do not compare the results they have achieved with
those obtained by their adversaries. They instead ask themselves whether their clients like what
they received.
Competitive problem-solvers appreciate the importance of negotiation process. Studies
indicate that persons who believe the bargaining process has been fair and they have been treated
respectfully are more satisfied with objectively less beneficial final terms than those with objectively
more beneficial terms achieved through a process considered less fair and less respectful. This
explains why proficient competitive problem-solvers always treat their adversaries with respect and
act professionally. They are also careful at the conclusion of interactions to leave opponents with
the feeling those persons obtained “fair” results.
Competitive problem-solvers do not work to maximize opponent returns for purely altruistic
reasons. They appreciate the fact that such behavior most effectively enhances their ability to
advance their own interests. They understand that they must offer their opponents sufficiently
generous terms to induce those persons to accept the agreements they are proposing. If they fail
to propose accords within opponent settlement ranges, no agreements will be achieved. They also
want to be certain that adversaries will honor the terms agreed upon. If opponents experience post-
agreement “buyer’s remorse,” they may refuse to effectuate those accords. The final consideration
concerns the fact that attorneys often interact with the same opponents in the future. If those
individuals feel that their current encounters have been pleasant and beneficial, they will look
forward to future interactions with those persons.
***
46

Many proficient negotiators employ a hybrid competitive problem-solving style. They behave
in a seemingly open and cooperative manner but are not entirely open, and they subtly employ
manipulative techniques to obtain a greater share of the joint surplus. They behave in a courteous
and professional manner in recognition of the fact that this behavior increases the likelihood of
achieving their objectives. Although their opponents think they are behaving in a cooperative
fashion, they admittedly employ disingenuous tactics to advance their interests. Opponents who
do not appreciate the degree to which the competitive value-creating style may be employed
successfully are likely to concede more than they should.

Digging Deeper

Professor Craver’s article condones subtle deception in negotiation. Is there a problem with such
deception in the negotiation context?

———————

POINTS FOR DISCUSSION

1.Professor Leonard Riskin has pointed out the downfalls of rigidly following one negotiation approach
or another.

[M]any negotiators demonstrate a rigid loyalty to a model or element, as they understand it. Of
course, studying, teaching and training initially require a certain sustained engagement with a
 model in order for students to understand it. The [value-creating] model, in particular, engenders
a good deal of passion, and many students embrace it with fervor. Sometimes they do so without
enough discernment; thus, for instance, they may fail to recognize “the negotiator’s dilemma,”
which arises because interest-based and position-based moves can interfere with one another.
[The value-creating approach to] negotiation generally requires some openness about one’s
motivations and, accordingly, presents a risk of exploitation by a counterpart’s adversarial moves.
Likewise, conduct that is too adversarial cuts off opportunities for addressing interests. Managing
the negotiator’s dilemma requires that the negotiator be aware of this dilemma moment to
moment and maintain an appropriate balance. This makes improvisation essential. And I believe
that most skillful negotiators do improvise in this sense.

Leonard L. Riskin, Beginning with Yes: A Review Essay of Michael Wheeler’s The Art of Negotiation: How to
Improvise Agreement in a Chaotic World, 16 Cardozo J. Confl. Resol. 605, 614–18 (2015).

47

2.Professors Gerald Williams and Charles Craver recommend employing the mixed approach to
negotiation described above as follows:

We believe that attorneys should work diligently to advance the interests of their own clients,
but should not allow this objective to negate other equally important considerations, such as
behaving ethically and professionally and seeking fair settlements that maximize the joint returns
achieved by both sides. Once negotiators obtain what they think is appropriate for their own
clients, they should look for ways to accommodate the non-conflicting interests of their
opponents.

Digging Deeper

Professor Riskin suggests that negotiators be aware of the negotiator’s dilemma moment to
moment. How does one do this? One method to heighten one’s awareness is through
mindfulness meditation, which is discussed in Chapter 1.

GERALD WILLIAMS & CHARLES CRAVER, LEGAL NEGOTIATING 53 (2007). The quote above makes it sound
like having an interest in maximizing joint returns, seeking fair settlements, or nurturing relationships is
outside the realm of client interests. Could those be a client’s interest as well?

3.Keith G. Allred conducted an empirical study to determine best negotiation practices for managing
the tension between creating and claiming value. Specifically, he identified several negotiation tactics that he
said are always effective, that is, they transcend the claiming value—creating value spectrum because they do
not diminish negotiation performance on other dimensions. A few of these practices include: developing
and improving one’s BATNA, using only the best arguments supporting the positions one advocates,
working to see where one’s interests are met, treating the other party with consideration and respect, engaging
in a collaborative effort to fulfill both parties’ underlying interests, and avoiding needless unpleasantness. See
Keith G. Allred, Distinguishing Best and Strategic Practices: A Framework for Managing the Dilemma between Claiming
and Creating Value, 16 Neg. J. 387 (2000).

4.After reading the various excerpts in this section, what are your underlying assumptions about the
negotiation process? Which approach do you favor? Why? Are there contexts where one approach is
beneficial to the others?
 48

E.REPUTATION AND TRUST

It is often said that a good reputation is a lawyer’s greatest asset. Likewise, a good reputation
is a valuable asset for negotiators. A negotiator’s reputation not only precedes him, it also impacts
how others react to his statements and actions both inside and outside the negotiation process. For
example, what will negotiators do if their counterpart has a reputation for throwing a fit in the
middle of negotiations? Will the tantrum, if it occurs, have any impact?

Negotiation Nugget

“It takes many good deeds to build a good reputation, and only one bad one to lose it.”

— Benjamin Franklin

An interesting aspect of one’s reputation as a negotiator is that it can change over time, albeit
slowly, and it can be different among different people. But what is a reputation exactly? A common
definition is “a coherent image of the nature of someone’s character which then directs how that
person will behave subject to situational restraints.” Catherine H. Tinsley, Andrea Kupfer
Schneider & Jack Cambria, Reputations in Negotiation, in 1 THE NEGOTIATOR’S DESK
REFERENCE 251 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2017). Another way
to think of reputations is a “socially constructed label[ ] that extend[s] the consequences of a party’s
actions across time, situations or other actions.” Catherine H. Tinsley, Kathleen M. O’Connor &
Brandon A. Sullivan, Tough Guys Finish Last: The Perils of a Distributive Reputation, 88 Org. Beh. &
Human Decision Processes. 621, 622 (2002). With these definitions in mind, what reputation
should negotiators develop, and upon which criteria should they focus? And how can negotiators
protect their reputations?
Note that in the following excerpt about negotiators’ reputations, Professor Nancy Welsh
discusses how one’s negotiation style is correlated with trustworthiness and perceptions of a
procedurally just process, all of which enhance one’s reputation as a negotiator.

NANCY A. WELSH, THE REPUTATIONAL ADVANTAGES OF DEMONSTRATING

TRUSTWORTHINESS: USING THE REPUTATION INDEX WITH LAW STUDENTS
28 Negot. J. 117, 136–139 (2011)

Exploring trustworthiness requires an initial look at the general concept of trust. Roger Mayer
and his colleagues . . . defined trust as “the willingness
49
of a party to be vulnerable to the actions of another party based on the expectation that the
other will perform a particular action important to the trustor, irrespective of the ability to monitor
or control that other party,” and observed that “[b]eing vulnerable implies that there is something
of importance to be lost.”
Researchers have found in other professional, nonlegal contexts that the ability to create “an
environment of trust” will play a significant role in achieving a negotiation’s integrative potential.
One hears echoes here of the research regarding the effects of perceptions of procedural justice in
negotiation. Further, and in light of the correlations between perceptions of procedural justice and
trustworthiness, it seems that a negotiator’s perceived trustworthiness—or his/her ability to create
an environment of trust—is likely to be positively correlated with his/her effectiveness as an
integrative negotiator and not negatively correlated with his/her effectiveness as a distributive
negotiator. This suggests that there is no disadvantage to behaving in a manner that is consistent
with procedural justice and trustworthiness.

Note

Remember, the integrative potential of a negotiation is another way of referring to the

opportunities the parties have to create value during the negotiation.

But the reality of legal negotiation—in which lawyers must play the simultaneous and
conflicting roles of both adversaries and professional colleagues—suggests that lawyers will find it
very difficult, if not ethically impossible, to offer unconditional trustworthiness to each other. Must
lawyers, therefore, leave consideration of trustworthiness behind? Williams has urged for example
that the legal negotiators who fit the aggressive pattern are hesitant to extend trust to anyone. They
“recognize that one way to avoid being too soft is always to be hard negotiators; that way, they are
never in danger of being too trusting. This saves them from the more difficult task of figuring out
when and whom to trust[.]”
***
50

Legal negotiation is rife with conflicting relationships that have the potential to pull lawyers
in opposing directions and suggest the value of thinking in terms of both calculus-based trust and
even a degree of rational distrust. The relationship between lawyer and client can easily conflict
with lawyers’ shared commitments to their profession, to their colleagues in that profession, and
to the justice system. Interestingly, the degree of this conflict may depend upon a lawyer’s
perception of how “deep” or “shallow” his/her relationship is with the profession, with other
lawyers, and with the justice system—and whether “the profession” or “the justice system” is
separate from, and has significance beyond, the individual lawyers (and judges) who are part of it.
Perhaps paradoxically, the degree of the conflict also may depend upon the clarity with which
society, the legal profession, disciplinary bodies, and courts have declared the lawyer’s relationship
with his/her client to be primary.

Note

Calculus-based trust is the kind of trust based on one’s knowledge of the consequences of
compliance or noncompliance with promised behaviors. It is discussed further in the notes
following this excerpt.

***
Conclusion
 Available research strongly suggests that lawyers with positive reputations as legal negotiators
tend to be those perceived by their peers as skilled lawyers who maximize results for their
clients and are sufficiently trustworthy. Such trustworthiness can be understood as an elastic yet
meaningful concept that (1) incorporates both trust and distrust, (2) is bounded by lawyers’ ethical
obligations, (3) is distinct from any particular negotiation approach . . ., but (4) is more likely
correlated with—that is, supporting and being supported by—a cooperative, procedurally just
negotiation style.
———————

POINTS FOR DISCUSSION

1.Professor Welsh’s article discusses trust and concludes that a negotiator should cultivate a reputation
for trustworthiness. Trust is based on one’s evaluation of another’s ability, integrity, and benevolence. Roger
C. Mayer, James H. Davis & F. David Schoorman, An Integrative Model of Organizational Trust, 20 Acad. Mgmt.
Rev.51709, 717 (1995). According to Mayer and his colleagues, ability refers to the skills, knowledge,
capabilities, and characteristics the individual has in a particular subject area or matter. Integrity is associated
with adherence to a set of principles the would-be trustor finds acceptable, and benevolence is the degree to
which the other individual has a positive inclination towards the would-be trustor. With these characteristics
in mind, how does one cultivate a reputation for trustworthiness?

2.If we are to understand trustworthiness, we need to have a good working definition of trust. Roy
Lewicki and his colleagues have studied several dimensions of trust, which is defined as “an individual’s
belief in, and willingness to act on the basis of the words, actions, and decisions of another.” Roy J. Lewicki
& Carolyn Wiethoff, Trust, Trust Development, and Trust Repair, in THE HANDBOOK OF CONFLICT
RESOLUTION: THEORY AND PRACTICE 106 (Morton Deutsch & Peter T. Coleman eds., 2000).

3.Professors Roy Lewicki and Barbara Benedict Bunker report that there are three types of trust that
build upon each other. The first is calculus-based trust, which is based on one’s knowledge of the
consequences of compliance or noncompliance with promised behaviors. For example, a settlement
agreement to resolve a litigated matter typically requires the delivery of payment to resolve the claim as a
prerequisite to the claim’s dismissal. Knowing what could happen if a promise is not fulfilled, such as court
filings to enforce the terms of the settlement agreement, typically results in the fulfilment of the contracted
promises. The second is knowledge-based trust, which is based on knowledge of another’s characteristics
and traits, such as reliability, through experience with that person. For example, a law firm partner may know
through experience that her associate will ably handle a negotiation in her stead because the associate has
proven his ability to do so time and again. The third kind of trust is identity-based trust. It is based on such
complete identification, understanding, appreciation, and sharing of another’s interests, desires, and
intentions that one person can effectively act for the other. This is the type of trust that can develop in close
friendships, spousal relationships, and long-standing attorney-client relationships, among other situations.
Roy Lewicki & Barbara Benedict Bunker, Trust in Relationships: A Model of Development and Decline, in CONFLICT,
COOPERATION & JUSTICE: ESSAYS INSPIRED BY THE WORK OF MORTON DEUTSCH 133 (Barbara Benedict
Bunker & Jeffrey Z. Rubin eds., 1995).

Digging Deeper

How does one regain trust once it has been broken? What steps does one have to take?
 4.Lewicki and his colleagues have also written about another valuable dimension that appears to be the
opposite of trust but is not necessarily so—distrust. Distrust is defined as “the confident expectation that
another individual’s motives, intentions, and behaviors are sinister and harmful to one’s own interests.” Roy
J.
52
Lewicki, Trust and Distrust, in 1 THE NEGOTIATOR’S DESK REFERENCE 207 (Andrea Kupfer Schneider
& Christopher Honeyman eds., 2017). In distrust situations, a belief that the other seeks to cause harm
motivates protective measures. Calculus-based distrust is confident negative expectations of another’s
conduct where the costs of maintaining trust outweigh the benefits of maintaining trust. In such situations,
the anticipated costs outweigh the benefits of the transaction, and looking for another to deal with becomes
necessary. For example, suppose that your company is downsizing, you and a co-worker hold the same
position, and your supervisor must decide who will keep their job. You meet first with the supervisor. Your
co-worker’s meeting is the next day. Will you tell your co-worker all of the questions asked by the supervisor?
Why not? Is it because you don’t like your co-worker? If it is impossible to avoid the situation, creating
boundaries and systems for monitoring and enforcing performance become key. Identification-based distrust
arises from perceptions of direct conflicts in values or goals or from negative emotions. In these situations,
distrust can be almost visceral, as with warring families, tribes, or countries, and minimizing the interaction
and any dependence on the other is best.

5.While it is important to understand how trust works, psychologist David DeSteno reminds us that
our trust calculations in real time are both conscious and subconscious. At the conscious level, we analyze
another’s behaviors and calculate or recalculate how much we trust someone. At the subconscious level, our
calculations lead to a gut feeling or instinct about whether or how much we should trust another. When these
two evaluations are in alignment, we act in accord with the conclusion. When they are not in alignment,
DeSteno advises following the subconscious evaluation because “intuitive processes provide more accurate
information than reflective ones.” DAVID DESTENO, THE TRUTH ABOUT TRUST: HOW IT DETERMINES
SUCCESS IN LIFE, LOVE, LEARNING, AND MORE 106–10 (2014). Do you think that intuitive judgments are
always more accurate than more deliberate ones?

6.DeSteno also notes that our reliance on reputations serves as a prime method for solving problems
of trust. Rather than having to guess about another’s trustworthiness, we rely on other people’s experiences
with that person to determine whether to trust that individual. Id. at 15.

7.In one study of non-lawyers, Professor Catherine Tinsley and her colleagues found that reputations
impacted negotiators’ perceptions of a counterpart’s intentions, negotiators’ own behaviors, and the
negotiation outcomes. In group negotiations where one negotiator had a reputation as an adept distributive
negotiator (i.e., having an ability to extract concessions), the negotiators spent more time sharing general
information and less time discussing specific information about priorities and preferences, engaged in more
small talk, and made more procedural remarks than in groups where the negotiators had no information
about their counterpart’s reputation. Negotiators whose counterparts had a reputation as
53
distributive negotiators judged those counterparts’ intentions as less favorable than did negotiators
whose counterparts had no reputation. And, negotiation pairs where one party had a distributive reputation
achieved lower joint gains than those pairs in which the parties had no reputational information. Catherine
Tinsley, Kathleen M. O’Connor & Brandon A. Sullivan, Tough Guys Finish Last: The Perils of a Distributive
Reputation, 88 Org. Beh. & Human Decision Processes 621, 621 (2002).
 8.In another study of non-lawyers, Professor Kathleen M. O’Connor and her colleagues found that
prior negotiation experiences had an impact on subsequent negotiations. Negotiators were asked to complete
two negotiations. Negotiators who reached an agreement in their first negotiation were more likely to reach
agreement in a second negotiation than those whose first negotiation resulted in impasse. In other words,
impasse in the initial negotiation made impasse in the second negotiation more likely. This was true when
negotiators had the same counterparts in both negotiations and when they were paired with different
counterparts in the second negotiation. Some negotiators who reached impasse in their first negotiation did
reach agreement in the second negotiation. But the terms of these deals were not as good as the deals
negotiated by those who reached agreement in the first negotiation. In fact, the more cooperative the
negotiators were in their initial negotiation, the higher their outcomes were in the subsequent negotiation.
Kathleen M. O’Connor, Josh A. Arnold & Ethan R. Burris, Negotiators’ Bargaining Histories and Their Effects on
Future Negotiation Performance, 90 J. App. Psych. 350 (2005).

Digging Deeper

Many social science studies look at the behavior of college-aged adults, that is 18–22 years of
age. Maybe you participated in such research while in college. Do you think that age group is
representative of all adults? What about people who work in the professions?

9.Some research suggests that in certain contexts, a reputation as a very aggressive legal negotiator can
produce superior outcomes for clients. In other contexts, aggressiveness seems to make no difference or to
be counterproductive. The devil is in the details, though. Aggressiveness might be defined in terms of a
particular bargaining style or, instead, be associated with making aggressive use of legal procedures and
developing other options. See D. James Greiner, Cassandra Wolos Pattanayak & Jonathan Hennessy, The
Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future,
126 Harv. L. Rev. 901, 919 (2013).

54

10.Managing one’s reputation is a complex and necessary task. How does one keep reputation in mind
in the midst of a negotiation? Do people have accurate impressions of their negotiation reputations? If not,
how should they go about improving their assessments?

Digging Deeper

Some lawyers like to cultivate tough competitive reputations as a method of intimidation or to

attract clients who want a “bulldog” to represent them. As you continue through this book, ask
yourself whether this is a wise decision.

11.Another approach to reputation while negotiating is to “Separate the Person from the Problem.”
Professor Fisher and Messrs. Ury and Patton suggest that a principled negotiator refrains from attacking the
other negotiator, but instead shifts all their attention to the issues being negotiated. Separate the emotional
and interpersonal dynamics from the substantive issues on the table. ROGER FISHER, WILLIAM URY &
BRUCE PATTON, GETTING TO YES: NEGOTIATING AGREEMENT WITHOUT GIVING IN 86 (3d ed. 2011).
How might this enhance your reputation as a negotiator?
 12.Does the notion of separating the people from the problem conflict with a lawyer’s duty to zealous
advocacy? The comments to Rule 1.3 of the Model Rules of Professional Conduct require lawyers to
represent their client with zeal but go on to explain that this zealous representation “does not require the use
of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and
respect.”

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CHAPTER 3

THE NEGOTIATION PROCESS

Every negotiation is unique, with its own environment and variables: the issues, the parties,
the lawyers, the interests, the parties’ respective leverage, and on and on. Professor Michael
Wheeler implores us to embrace the inherent chaos in negotiation and to recognize that “managing
uncertainty should be the cornerstone of your negotiation strategy.” THE ART OF NEGOTIATION:
HOW TO IMPROVISE AGREEMENT IN A CHAOTIC WORLD 13 (2013). He suggests that negotiators
continuously “learn, adapt, and influence.” Id. at 1–4. To do this, negotiators need a sound
understanding of negotiation theory and the negotiation process so they can make conscious
choices in the moment.

Negotiation Nugget

In his book The Art of Negotiation: How to Improvise Agreement in a Chaotic World, Harvard Business
School Professor Michael Wheeler says that negotiation should be considered a form of
improvisation and compares it favorably to other forms of improvisation—jazz and comedy.

The first thing to understand about the negotiation process is that even though it can be fluid
and unpredictable, most negotiations follow a somewhat predictable pattern. In the following
excerpt, Professor Shell argues that negotiations typically include four steps or stages.

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR

REASONABLE PEOPLE
119 (2d ed. 2006)

Negotiation is a dance that moves through four stages or steps. . . . Let’s look at a simple
example from real life to see how the four-step sequence works in practice.
Imagine you are approaching a traffic intersection in your car. You notice that another car is
nearing the intersection at the same time. What do you do?
Most experienced drivers start by slowing down to assess the situation. Next, they glance
toward the other driver to make eye contact, hoping to
56
establish communication with the other person. With eye contact established, one driver
waves his or her hand toward the intersection in the universally recognized “after you” signal.
Perhaps both drivers wave. After a little hesitation, one driver moves ahead and the other follows.
Note the four-step process: preparation (slowing down), information exchange (making eye
contact), proposing and concession making (waving your hand), and commitment (driving
through). This may seem like a unique case, but anthropologists and other social scientists have
observed a similar four-stage process at work in situations as diverse as rural African land disputes,
British labor negotiations, and American business mergers. The four stages form an unstated and
often unseen pattern just below the surface of negotiations.
———————

POINTS FOR DISCUSSION

1.Professor Shell’s depiction of the negotiation process as four steps can be viewed as a bare minimum,
and it is one that we suggest in this book, although we alter it just slightly using “offers and concessions” for
“concession making.” Others parse the process more finely. For example, Professor Thomas Guernsey
argues that negotiations generally include ten stages: (a) preparation and planning; (b) ice breaking; (c) agenda
control; (d) information bargaining; (e) proposals, offers, demands; (f) persuasion/justification; (g)
concessions/reformulation; (h) crisis (i.e., resolution or deadlock); (i) closing; and (j)
memorialization. THOMAS F. GUERNSEY, A PRACTICAL GUIDE TO NEGOTIATION 12 (1996).
 2.Even though negotiations generally tend to flow from one stage to the next, it is useful to keep in
mind that many negotiations are non-linear. It is common, for example, for negotiators to rush past the
information exchange stage to start sharing offers and concessions. Or new information may come to light
when finalizing a deal, resulting in a new round of offers and concessions. Or an individual may not realize
she is in a negotiation until she is well into it, making preparation a wished-for impracticality. Additionally,
some specific negotiation tasks bridge the four stages, as negotiators prepare strategies for exchanging
information and making offers and concessions.

A.PREPARATION
The biggest mistake that most negotiators make is failing to prepare adequately, or even at all.
They believe their knowledge of the situation will suffice and that their experience or instincts are
all they need to rely upon for success. If there is a logic here, it is overly simplistic—what worked
before
57
will work again. While there certainly can be similarities across negotiations, such logic is
flawed: each negotiation has its own set of variables that make it unique. The importance of
preparation cannot be understated; it is one of the easiest ways to increase your effectiveness as a
negotiator. Planning for the unique challenges of each negotiation is what keeps the best
negotiators at the top of their game.

Negotiation Nugget

“What is the most universally ignored but most effective negotiation tool? Preparation.”

— Martin E. Latz

Those who do minimal preparation tend to start from positions and work through logical
arguments supporting those positions in the hope these arguments will win over their counterpart.
They may spend some time considering the positions they expect their counterparts to advocate in
the negotiation. Other negotiators reject this positional approach as being too limiting because it
ignores the value creation side of the Negotiator’s Dilemma. It is also important to plan an offer
and concession strategy. Winging it is a clear invitation for ineffective behavior and mistakes that
decrease the chances of reaching an agreement. For example, unprepared negotiators may be prone
to cognitive biases such as confirmation bias, selective attention, and misattribution, as well as
engage in unethical behavior such as lying about or failing to disclose material facts.
Any preparation efforts need to focus first on the negotiation fundamentals discussed in
Chapter Two—considering interests to help create value as well as identifying objective criteria and
a BATNA to guide the claiming of value. By identifying your interests before the negotiation, you
can better assess the strength of your BATNA, determine the value of potential settlement options,
and ensure you do not walk away from a good deal or accept a bad deal. Thorough preparation
also includes considering your counterpart’s interests and likely BATNA, along with the objective
criteria your counterpart is likely to employ. Anticipating these elements will assist with other
preparation tasks discussed below.

1.Reservation Points and Goals

 A negotiator’s reservation point is closely related to her BATNA because it delineates the
point where her BATNA becomes more attractive than a potential deal. A goal can be thought of
the highest legitimate expectation a negotiator can achieve. In the following excerpt, we revisit
58
Professor Korobkin’s article discussing a more value claiming approach of negotiation. This
excerpt focuses on reservation points and describes the interaction of one’s reservation point and
BATNA.

RUSSELL KOROBKIN, A POSITIVE THEORY OF LEGAL NEGOTIATION

88 Georgetown L. Rev. 1789, 1794–97 (2000)

A negotiator cannot determine his [reservation point (RP)] without first understanding his
substitutes for and the opportunity costs of reaching a negotiated agreement.
***
If the negotiator’s BATNA and the subject of the negotiation are perfectly interchangeable,
determining the reservation price is quite simple: the reservation price is merely the value of the
BATNA. For example, if Esau’s BATNA is buying another catering business for $190,000 that is
identical to Jacob’s in terms of quality, earnings potential, and all other factors that are important
to Esau, then his RP is $190,000. If Jacob will sell for some amount less than that, Esau will be
better off buying Jacob’s company than he would be pursuing his best alternative. If Jacob demands
more than $190,000, Esau is better off buying the alternative company and not reaching an
agreement with Jacob.

Note

This article is excerpted earlier in Chapter 2, and this passage presumes familiarity with the prior
excerpt.

In most circumstances, however, the subject of a negotiation and the negotiator’s BATNA
are not perfect substitutes. If Jacob’s business is of higher quality, has a higher earnings potential,
or is located closer to Esau’s home, he would probably be willing to pay a premium for it over
what he would pay for the alternative choice. For example, if the alternative business is selling for
$190,000, Esau might determine he would be willing to pay up to a $10,000 premium over the
alternative for Jacob’s business and thus set his RP at $200,000. On the other hand, if Esau’s
BATNA is more desirable to him than Jacob’s business, Esau will discount the value of his BATNA
by the amount necessary to make the two alternatives equally desirable values for the money;
perhaps he will set his RP at $180,000 in recognition that his BATNA is $10,000 more desirable
than Jacob’s business, and Jacob’s business would be equally desirable only at a $10,000 discount.
59

***
The relationship between a party’s BATNA and his RP can be generalized in the following
way. A party’s RP has two components: (1) the market value of his BATNA; and (2) the
difference to him between the value of his BATNA and the value of the subject of the negotiation.
A seller sets his RP by calculating (1) and either subtracting (2) if the subject of the negotiation is
more valuable than his BATNA (and therefore he is willing to accept less to reach an agreement)
or adding (2) if the BATNA is more valuable than the subject of the negotiation (and therefore, he
would demand more to reach an agreement and give up his BATNA). A buyer sets his RP by
calculating (1) and either adding (2) if the subject of the negotiation is more valuable than his
BATNA (and therefore he would pay a premium to reach an agreement) or subtracting (2) if his
BATNA is more valuable than the subject of the negotiation (and therefore he would demand a
discount to give up the BATNA).

Negotiation Nugget

A negotiator’s subjective valuation comes into play when determining a reservation price. When
discussing this with a client, attorneys should feel free to discuss this subjective valuation openly
as it may help uncover unstated interests.

Internal preparation serves two related purposes. By considering the value of obvious
alternatives to reaching a negotiated agreement, the negotiator can accurately estimate his RP. This
is of critical importance because without a precise and accurate estimation of his RP the negotiator
cannot be sure to avoid the most basic negotiating mistake—agreeing to a deal when he would
have been better off walking away from the table with no agreement.
———————

POINTS FOR DISCUSSION

1.What is the best way to describe the difference between one’s BATNA and one’s reservation point?
Does a reservation point have to be purely monetary?

2.In the earlier excerpt of Professor Korobkin’s article in Chapter 2, he points out that the parties’
respective reservation points frame whether there is a bargaining zone, and he states that “knowledge of the
parameters of the bargaining zone . . . is the most critical information for the negotiator to possess.” Do you
agree
60
with this statement? Why or why not? This statement also implies that a negotiator should try to
estimate a counterpart’s reservation point. What is the best method of doing that?

Note

The use of data analytics, and the inherent biases of data analytics, as a means of informing a
negotiator’s BATNA is discussed in Chapter 7.

3.Note that Korobkin places a lot of weight on the valuation of a negotiator’s BATNA while
recognizing that BATNAs are not always perfect substitutes for the subject matter of the negotiation. How
does one go about making valuations in these kinds of situations? Are they strictly subjective?

Lawyers who use an expected-value approach rely on basic economic principles to help them determine
their reservation point and BATNA. Consider how this might work in litigation. Suppose that a plaintiff has
filed a breach of contract suit against a defendant for $100,000. Suppose further that the lawyers representing
both litigants believe, based on the facts of the case and the legal research they have conducted, that the
plaintiff has a 50% of winning. Finally, suppose that both litigants will have to spend $10,000 more to litigate
the case to a verdict than they will to settle.

To calculate the expected value of trial for the plaintiff, her lawyer multiplies the probability of
prevailing (50%) by the anticipated judgment ($100,000) and subtracts the costs of trial ($10,000). The
expected value of trial for the plaintiff is thus $40,000 [(50% × $100,000) + (50% × $0) – $10,000].

Negotiation Nugget

Two excellent discussions of the expected value approach using decision tree analysis are
Marjorie Corman Aaron’s book Client Science: Advice for Lawyers on Counseling Clients through Bad
News and Other Legal Realities (2012) and John Lande, Michaela Keet, and Heather D.
Heavin’s Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation
Decisions (2020).

To calculate the expected value of trial for the defendant, her lawyer multiplies the probability of the
plaintiff prevailing (50%) by the anticipated judgment (–$100,000) and subtracts the costs of trial ($10,000).
The expected value of trial for the defendant under these circumstances is thus –$60,000 [(50% × –$100,000)
+ (50% × $0) – $10,000].

Based on these calculations, the plaintiff should be willing to settle for a minimum of $40,000, and the
defendant should be willing to pay a maximum of $60,000 to settle. Thus, the lawyers should attempt to
negotiate a settlement within
61
this $20,000 bargaining range. The difficulty comes, of course, when the lawyers have vast
disagreements on the probability of prevailing.

To calculate the expected value of trial, a lawyer must predict how a judge or jury will apply governing
principles of law to the facts of the case. If a settlement offer or demand is better for the client than the
expected value of trial, she will advise her client to settle; if it is not, she will recommend trial. Thus, a lawyer
employing the expected-value approach to settlement bargains “in the shadow of the law.” Robert H.
Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 Yale L.J. 950 (1979).

4.Even though determining the expected value of a BATNA is an important part of preparation, there
is no guarantee that it will determine the settlement amount or even that settlement will occur. What accounts
for this? Professor Russell Korobkin and Dean Chris Guthrie challenge the conventional wisdom that
settlements break down because of party miscalculation or disagreement over distribution; they suggest that
psychological dynamics also play an important role. Russell Korobkin & Chris Guthrie, Psychological Barriers
to Litigation Settlement: An Experimental Approach, 93 Mich. L. Rev. 107, 108–09 (1994). The following notes
identify some of those psychological processes, often described as heuristics.

Negotiation Nugget

Think of this relationship between gains and losses in terms of a gambler at a casino. Once a
gambler gets ahead, most of them seek to protect their winnings. But once they get behind, many
start to make double-or-nothing bets, bets considered to be much risker because of the potential
amount of losses.
 a.Framing Effects. When faced with risk or uncertainty—like when deciding whether to settle
a case or go forward to trial—people tend to make risk-averse decisions when choosing between
options that appear to be gains and risk-seeking decisions when choosing between options that
appear to be losses. See, e.g., Jeffrey J. Rachlinski, Gains, Losses, and the Psychology of Litigation, 70 S.
Cal. L. Rev. 113, 128–29 (1996) (discussing prospect theory).

b.Self-Serving Biases. When evaluating their respective cases, litigants and lawyers may
overestimate their chances of prevailing at trial due to “self-serving” or “egocentric” biases. Chris
Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 Cornell L. Rev. 777,
811–13 (2001).

62

c.Equity-Seeking. Even litigants and lawyers attempting to maximize their net-expected-

outcomes in litigation may seek to accomplish non-monetary objectives, such as obtaining
vindication from the other side or restoring fairness to a damaged relationship. See, e.g., Russell
Korobkin & Chris Guthrie, Psychological Barriers to Litigation Settlement: An Experimental Approach,
93 Mich. L. Rev. 107, 144–47.

Negotiation Nugget

One famous example of a self-serving/egocentric bias was a study where law students were
assigned to play the role of the plaintiff and defendant in an automobile-motorcycle collision
case where the plaintiff was seeking $100,000. Both sides were provided identical information
about the case and were asked what would be a fair settlement value. The plaintiff-respondents
predicted an award nearly $18,000 higher than the defendant-respondents. George Lowenstein,
et al., Self-Serving Assessments of Fairness and Pretrial Bargaining, 22 J. Legal Studies, 135
(1993).

5.Professor Korobkin writes “Reaching agreement for any amount that lies within the bargaining zone
is superior to not reaching an agreement for both parties”. Russell Korobkin, A Positive Theory of Legal
Negotiation, 88 Georgetown L. Rev. 1789, 1792 (2000). And yet, researchers have found that negotiators
regularly make irrational decisions and agree to terms that are past their reservation point and worse than
their BATNA. Why might that be? Professor Leigh Thompson points to the agreement bias, the
phenomenon of reaching a deal when there is no zone of potential agreement, or a negative bargaining zone.
Leigh Thompson, THE MIND AND HEART OF THE NEGOTIATOR 214 (7th ed. 2020). This phenomenon is
most prevalent when negotiators work alone and prioritize the social pressures of being liked or out of
concern that others will perceive an impasse as a failure. When working within a team, negotiators are less
prone to agreement bias because of the social pressures to be liked within the team as well as a greater
information processing capacity. Leigh Taya R. Cohen, Geoffrey J. Leonardelli & Leigh Thompson, Avoiding
the Agreement Trap: Teams Facilitate Impasse in Negotiations with Negative Bargaining Zones, 7 NEG. CONFLICT MGMT.
RES. 232 (2014).

6.Your reservation point can also help you determine whether to negotiate at all. Professors Deepak
Malhotra and Max Bazerman give two examples in their book Negotiation Genius. The first and most
straightforward is when your BATNA, and by extension your RP, beats your counterpart’s best possible
offer. This means there is no bargaining zone, and negotiating is simply wasting everyone’s time. The second
is when your counterpart knows that your BATNA, and by extension your RP, are weak in relation to an
offer you have already received. With no comparable alternatives, making principled counteroffers is difficult,
although not impossible.
63
DEEPAK MALHOTRA & MAX BAZERMAN, NEGOTIATION GENIUS: HOW TO OVERCOME OBSTACLES
AND ACHIEVE BRILLIANT RESULTS AT THE BARGAINING TABLE AND BEYOND 285–86, 294–95 (2007).

7.Negotiation goals or aspirations play an important part in negotiation preparation and in how people
view their negotiation outcomes. Professor G. Richard Shell defines a negotiation goal as the “highest
legitimate expectation of what you should achieve.” BARGAINING FOR ADVANTAGE: NEGOTIATING
STRATEGIES FOR REASONABLE PEOPLE 30 (2d ed. 2006). Offers based on hunches, feelings, or simple
financial desires come across as unprincipled and undeserving of serious consideration. Andrea Kupfer
Schneider, Aspirations in Negotiation, 87 Marq. L. Rev. 675, 678 (2004). What is it that makes an expectation
legitimate?

8.One benefit of goal setting is that it gives us a reference point that is more optimistic than one’s
reservation point. According to Shell:

Researchers have discovered that humans have a limited capacity for maintaining focus in
complex, stressful situations like negotiations. Consequently, once a negotiation is under way, we
gravitate toward the single focal point that has the most psychological significance for us. Once
most people set a firm bottom line in a negotiation, that becomes their dominant reference point
as discussions proceed. They measure success or failure with reference to their bottom line.

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATING STRATEGIES FOR REASONABLE

PEOPLE 31 (2d ed. 2006).

Using the “reference point theory of aspirations,” Professor Russell Korobkin tested the effects of
various “settlement levers” associated with traditional litigation such as reservation points, perceptions of
fairness, patience, and willingness to risk impasse. He concluded that while high aspirations help negotiators
achieve more favorable bargaining results when a deal is reached, the associated cost was a higher risk of
bargaining impasse and less overall satisfaction with bargaining outcomes. Aspirations and Settlement, 88
Cornell L. Rev. 1 (2002). See also Sally Blount White & Margaret A. Neale, The Role of Negotiator Aspirations and
Settlement Expectancies in Bargaining Outcomes, 57 Org. Behav. & Human Decision Processes, 303, 305–307
(1994).

Digging Deeper

How should a city compensate the wrongly imprisoned? http://www.npr.org/2016/07/27/

487665663/how-does-a-city-compensate-the-wrongly-imprisoned-and-tortured.

9.Professor Clark Freshman and Dean Chris Guthrie also observe that while setting higher goals results
in better objective results, it can also make negotiators feel worse about their negotiation outcomes. The
reason is simple. Negotiators who set ambitious
64
goals routinely fall short of their aspirations. Freshman and Guthrie labeled this phenomenon the
“goal-setting paradox” because “negotiators want both good results (objective success) and to feel good
(subjective success),” objectives that can be in tension. To overcome the goal-setting paradox, Freshman and
Guthrie suggest employing what they call the maximize-and-expand approach. To do this, negotiators should
seek to expand their self-awareness by noticing their feelings and thoughts after a negotiation, expanding
their self-acceptance by recognizing that substantial compliance with a goal may still be a good outcome, and
focus on a broader scope of potential negotiation experiences and outcomes before, during, and after the
negotiation. Clark Freshman & Chris Guthrie, Managing the Goal-Setting Paradox: How to Get Better Results from
High Goals and Be Happy, 25 Negot. J. 217 (2009).

10.To counteract the psychological consequences noted above with respect to goal setting, a negotiator
might set multiple goals along a continuum: Aspiration, Target, and Reservation. Using this approach, a
negotiator uses objective criteria or another grounded principle to set each of these parameters. The
negotiator’s aspiration is the best legitimate outcome possible. Note that this aspiration may serve as a
negotiator’s first offer. A target is where the negotiator hopes to end up in the negotiation, and the reservation
defines the point at which the negotiator’s BATNA provides a better alternative.

11.As negotiators focus on their goals and aspirations, they move their focus from creating value to
claiming value. This move can be easy or difficult depending on the interests at stake. For example, how do
negotiators quantify abstract concepts like love, respect, goodwill, and the value of a human life?

2.Options

Well-prepared negotiators consider both their interests and their counterpart’s interests and
look for various options that may satisfy them. This analysis assists with value creation by
increasing the likelihood that there will be mutually attractive options from which the negotiators
can choose. Consider the following excerpt from Professor Menkel-Meadow.

CARRIE MENKEL-MEADOW, AHA? IS CREATIVITY POSSIBLE IN LEGAL PROBLEM

SOLVING AND TEACHING IN LEGAL EDUCATION?
6 Harv. Negot. L. Rev. 97, 109–11 (2001)

One can structure a problem solving approach to negotiation by focusing on a three step
process in which first, the lawyer identifies multiple classes of needs, objectives, interests or goals
from one’s own client. Then, s/he proceeds to do the same for other parties involved, using
information available from public knowledge, research, client knowledge and from the negotiation
session. Finally, the negotiator examines and matches loci of
65
complementary and then conflicting needs and interests of the parties, in a systematic way, in
order to craft solutions that maximize joint gain or Pareto-optimal solutions. . . .
***
Often a solution to a negotiated problem may be illuminated by exploring the characteristics
of the “problem” mapped over parties’ particular needs and interests. WHAT is the problem about?
(What is the res? What is at stake? Can the thing itself be altered in any way?) WHO is involved?
Are there stakeholders other than the parties formally at the table? Does adding parties facilitate a
solution, or, as in the case of bringing in an insurer, does one increase those who can contribute to
a solution, or, as in the case of the IRS, which is always a party to a legal negotiation, do tax
concerns change the dynamics and suggest other solutions? WHERE is the transaction/
dispute/res located? Does jurisdiction matter for the problem? What about the location is alterable?
(e.g., employment disputes with multiple offices or government agencies can offer transfer
opportunities). WHEN does the dispute or transaction have to be resolved? This factor has led to
the important and structural solutions of annuity payments in tort cases, installment payment
contracts, contingency pricing and risk allocations, as well as continuing options, accelerated or
graduated payments and duties and a whole host of substantive time-based solutions for trials,
contingencies and terminable-upon-conditions arrangements. HOW may the matter be negotiated?
Must solutions be conventional payments of money? Are other more creative solutions possible?
In-kind trades? Apologies? Percentage of gross or net, instead of fixed sums? Contingent
agreements? Secured obligations? Guarantors? Third party reviews? Can dispute resolution
procedures themselves be altered? These framing questions for legal solutions to negotiated
problems are a way of increasing the resources available for solving problems and probing for non-
obvious solutions.
———————

POINTS FOR DISCUSSION

1.Professor Menkel-Meadow mentions “Pareto-optimal” solutions. A “Pareto-superior” outcome is
one that “makes at least one person better off and no one worse off.” RICHARD A. POSNER, ECONOMIC
ANALYSIS OF LAW 14–15 (5th ed. 1998). A solution is said to be Pareto-optimal when no other outcome
improvements can be made. Alexander D. Northover, “Enough and as Good” in the Intellectual Commons: A
Lockean Theory of Copyright and the Merger Doctrine, 65 EMORY L.J. 1363, 1383 n.138 (2016).

66

2.Professor Leigh Thompson distinguishes options based on the amount of potential value created.
Options of the first type are those that are within the distributive bargaining range. Options of the next or
second level are those that are clearly better than those in the distributive bargaining range. And options of
the final and third value level is those that reach the pareto-frontier. She says, “ideally, negotiators should
always strive to reach level 3 integrative agreements. Higher levels are progressively more difficult for
negotiators to achieve, but they are more beneficial to negotiators.” Leigh Thompson, THE MIND AND
HEART OF THE NEGOTIATOR, 47–48 (1st ed. 1998).

3.Contingent agreements are a helpful creative tool that provides a means for “genuinely held
disagreements about the future” to generate “an important opportunity for negotiators to discover an
attractive exchange.” Michael L. Moffitt, Contingent Agreements, in 1 THE NEGOTIATOR’S DESK
REFERENCE 619 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2017). Can you see a contingent
agreement being viable to someone who is notably risk averse?

4.One way that negotiators using the value-creating strategy can generate options is through
brainstorming. In this process, negotiators generate as many options as possible, without judging them.
Should parties brainstorm prior to negotiation as a way of preparing for the negotiation? What are the
advantages and drawbacks of an option-generation process like brainstorming?

5.Do you see any potential drawbacks to generating options? Dean Chris Guthrie suggests that the
addition of options can give rise to four phenomena that tend to occur in the following order: devaluation
of the initial option, inability to make decisions independent of context, indecision in choosing between
options, and regret over the decision. Thus, negotiators who “generate multiple options may be induced by
the very availability of those options to make decisions that run contrary to their true preferences and that
induce negative post-decision emotions.” Chris Guthrie, Panacea or Pandora’s Box? The Costs of Options in
Negotiation, 88 Iowa L. Rev. 601, 607–08 (2003). Multiple alternatives can also distort negotiators’ assessment
of the bargaining range. Michael Schaerer, David D. Loschelder & Roderick I. Swaab, Bargaining Zone
Distortions in Negotiations: The Elusive Power of Multiple Alternatives, 137 Org. Behav. & Hum. Decision Processes
156 (2016).

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3.Information Gathering

It is regularly said that information is power, and implicit in the discussions throughout this
book is the idea that a negotiator, to be effective, has to gather information. A negotiator must
gather information before the negotiation in order to have a good grasp on fundamental
negotiation concepts such as interests, objective criteria, and BATNA. Without this information, a
negotiator is likely to reach a sub-optimal deal because it will be nearly impossible to determine
clear negotiation goals. Thus, negotiators should do as much investigation into the subject matter
of the negotiation—fundamental negotiation concepts (interests, objective criteria, and BATNA),
potential outcomes and options, and even one’s negotiation counterpart—as possible. The more
investigation that can be done before the negotiation, the better. Remember that you can use
questions to do more than identify useful facts. Well-crafted questions, delivered well and with
appropriate active listening, can help you to understand the other party’s interests, available
resources, and perceptions of available alternative options if they do not reach an agreement with
you. Gaps in the available information form the basis for questions to ask the negotiation
counterpoint as part of the information exchange phase of negotiation as discussed below.

Negotiation Nugget

One of the foundations of litigation practice is fact investigation, a skill woefully underdeveloped
in legal education. The more you can develop these skills the better litigator and negotiator you
will become.

4.Emotions

Many negotiation texts and articles gloss over the emotional component of negotiation for
several reasons—emotions can be unpredictable and “messy,” and more analytical people (like
lawyers) tend to dismiss the power of emotions. Yet, negotiation is an inherently emotional activity,
both for lawyers and clients. Negotiators’ emotional responses to offers and counteroffers often
result in negotiation errors. The next excerpt discusses how negotiators can understand and
manage emotions by focusing on the five core concerns that lead to both positive and negative
emotions.
68

LEONARD L. RISKIN, FURTHER BEYOND REASON: EMOTIONS, THE CORE CONCERNS,

AND MINDFULNESS IN NEGOTIATION
10 Nev. L.J. 289, 294–95, and 299 (2010)
 ***
I.The Problem: Emotions in Negotiation
Most of us have trouble dealing with emotions that are associated with conflict. Negotiators—
especially those trained in law—commonly address this problem by trying to exclude emotions
from negotiation and to focus solely on so-called objective, rational factors, such as money.
Negotiators may come to this approach through mentoring, training, or education. Most traditional
law school courses, for instance, exclude consideration of the emotions of the parties, lawyers, and
judges. But many negotiators adopt this approach without any training, and without even thinking
about it. Some of them have little or no conscious awareness of emotions. Others may ignore
emotions in order to avoid uncomfortable anxiety. Still others might fear that recognizing,
expressing, or attempting to address emotions will overwhelm their cognitive faculties and escalate
the conflict, making it more difficult to resolve.
Speaking generally, Fisher and Shapiro assert that the Core Concerns System can promote
better interest-based negotiation by addressing some causes of negative emotions and fostering
positive emotions. . . .
Although a negotiation that excludes direct expression or consideration of emotions often
enables parties to settle disputes, it also can precipitate several problems. For instance, parties
frequently will not reach the best feasible resolution because they fail to look beneath their asserted
positions for the interests, beliefs and perspectives that lie beneath them. As Bernard Mayer has
suggested, “full” resolution of a conflict requires resolution along three dimensions—cognitive,
emotional, and behavioral. And, as Daniel Shapiro argues elsewhere, “[e]motions are a means to
communicate relational identity concerns.” Thus, to the extent that negotiators keep emotions out
of the negotiation process, they—or their principals—are less likely to achieve an emotional
resolution because they do not address the needs associated with such emotions. Of course,
emotions tend to sneak in anyway. When that happens, these emotions can prompt adversarial
perspectives and behavior, making it less likely that the substantive interests will get attention. In
addition, negative emotions can impair the parties’ ability to think clearly, render them vulnerable
to exploitation, and possibly harm relationships.
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Thus, negative emotions can even impair a negotiator’s ability to skillfully conduct adversarial
negotiations.
***
II.Addressing the Challenge of Emotions in Negotiation: The Core Concerns System
In a negotiation, Fisher and Shapiro tell us, everyone has five “core concerns”: appreciation,
affiliation, autonomy, status, and role. We all want to feel appreciated by others, to affiliate with
others, to have autonomy, to have others recognize our status, and to have a meaningful role. We
have these concerns not only in negotiation, but also in many other interactions. . . .
Left unsatisfied, any of the core concerns can produce negative emotions. And negative
emotions can interfere with good interest-based problem solving. Satisfaction of these core
concerns, however, leads to positive emotions, and positive emotions enhance one’s ability to
engage skillfully in interest-based negotiation. Fisher and Shapiro believe that negotiators are
influenced by too many emotions to notice and address directly; for that reason, they suggest that
a more practical, robust approach is to deal with these emotions indirectly by employing the core
concerns as a diagnostic “lens” (to understand the situation and to plan, conduct, and review the
negotiation) and as a “lever” (to improve the situation by fostering positive emotions in all parties,
which can support better interest-based negotiation). . . .
———————

POINTS FOR DISCUSSION

1.In their book, BEYOND REASON: USING EMOTIONS AS YOU NEGOTIATE (2005), Professors Roger
Fisher and Daniel Shapiro state:

These five core concerns [appreciation, affiliation, autonomy, status, and role] are not
completely distinct from one another. They blend, mix, and merge. But each has its own special
contribution in stimulating emotions. Together, these concerns more fully describe the emotional
content of a negotiation than could any single core concern. The core concerns are analogous to
the instruments a quintet uses to play Mozart’s Woodwind Quintet. No sharp edges divide the
contribution of the flute, oboe, clarinet, bassoon, and French horn. But together, the five
instruments more fully capture the tone and rhythm of the music than could any individual
instrument.

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Id., at 18 (2005). If the five core concerns blend together, what does a negotiator do to best address the
various blends of core concerns that present themselves?

2.Emotions are a part of the human condition. When talking about emotions and negotiation, most
negotiators focus on the negative emotions. In particular, anger and fear are often viewed as
counterproductive to the negotiation process. Directing anger toward circumstances rather than at
individuals is one way to keep anger from causing problems. Similarly, cooling off periods to release steam
and regain composure can help negotiators manage anger in the moment. Preparation may be the best
strategy for defusing fear. Another strategy for dealing with fear is acting confident, despite being fearful.
While managing one’s and one’s client’s emotions is difficult enough, managing a counterpart’s emotions
can be particularly difficult. The first step is keeping yourself apprised of the other’s mood in order to defuse
any issues before they arise. If that is not possible, typical strategies include refraining from matching the
emotion, taking a break, and finding ways to help the other to save face. See generally Robert S. Adler,
Benson Rosen & Eliot M. Silverstein, Emotions in Negotiation: How to Manage Fear and Anger, 14 Negot. J. 161
(1998); Allison Wood Brooks & Maurice E. Schweitzer, Can Nervous Nelly Negotiate? How Anxiety Causes
Negotiators to Make Low First Offers, Exit Early, and Earn Less Profit, 115 Org. Behav. & Hum. Decision
Processes 43 (2011).

Negotiation Nugget

Some negotiators try to fake anger as a negotiation strategy. People who display fake anger usually
dissipate the anger very easily compared to those who are truly angry. Additionally, negotiators
typically make greater demands when they believe that someone is using anger simply as a
negotiation tactic. See Stephane Cote, et al., 49 J. Experimental Soc. Psych. 453 (2013).
 3.Another framework from which to consider emotions is the evolutionary theory of emotions.
Evolutionary emotion theorists have identified two purposes for anger. First, anger serves to stop ongoing
transgressions and deter future transgressions by the transgressor and, potentially, others. Second, anger
arises when others place insufficient weight on the actor’s welfare compared to their own welfare. When
anger is activated in this way, the actor typically uses one of two tactics—inflicting costs (e.g., aggression) or
withdrawing benefits—that are designed to recalibrate the other’s lack of concern. See Keelah Williams &
Art Hinshaw, Outbursts: An Evolutionary Approach to Emotions in the Mediation Context, 34 Negot. J. 164 (2018).

4.A recent study by Professors Hajo Adam & Jeanne Brett examined the effects of anger in negotiations.
They found that the targets of anger respond differently depending on whether the negotiation setting is
cooperative—one where
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people experience high levels of trust, benevolence, and the motivation to work together—or
competitive—one where people experience high levels of distrust, selfish and defensive desires, and the
motivation to engage in strategic behavior—or balanced between the two. In both cooperative and
competitive settings, expressions of anger elicited hostile reactions—such as decreased interpersonal liking,
reciprocal anger, or the desire to retaliate—that resulted in fewer concessions. However, in balanced settings,
expressions of anger led targets to make “strategic inferences,” hypothesizing about the expresser’s
toughness and intentions. Targets of anger then used this information to assess whether there was a real
threat of impasse or escalation that required behavioral adjustments. As a result, the expression of anger in
balanced settings led targets of anger to make greater concessions. See Hajo Adam & Jeanne Brett, Context
Matters: The Social Effects of Anger in Balanced, Cooperative, and Competitive Negotiation Situations, 61 J. Experimental
Soc. Psychology 44 (2015).

B.INFORMATION EXCHANGE
As you have likely deduced, much of negotiation is an exercise in gathering and distributing
information to facilitate the discovery and disclosure of interests. While negotiators gather as much
information as possible in their preparation, they cannot learn everything beforehand due to time,
costs, availability, and other factors. This means that information gathering continues into the
across-the-table stages of negotiation. Not only is the exchange of information the primary means
of creating value, it also helps set the interpersonal relationship of the negotiators. Many
negotiations flounder in this stage because of a lack of planning.

Negotiation Nugget

Research has shown that taking the time to build rapport and engage in small talk prior to
conducting a negotiation via email increases the likelihood of reaching an agreement. Janice
Nadler, How Small Talk Can Facilitate E-mail Dealmaking, 9 Harv. Neg. L.J. 223 (2004).

When information is a tradable commodity, its highest and best use is to create value. Thus,
the basic goal in developing an information bargaining strategy is simply to determine what
information is needed and how to get it, what information can be shared, and how to best protect
the information that cannot be shared. In the subsections that follow, we discuss these topics in
detail.
———————
 72
POINTS FOR DISCUSSION

1.When creating an information exchange strategy, negotiators will feel the push and pull of the
Negotiator’s Dilemma. Negotiators should plan disclosure with an eye to reciprocity. Reciprocal disclosures
should beget further disclosures of information. If one’s disclosures are not being reciprocated, negotiators
should be prepared to engage in more direct information gathering strategies. If these strategies are fruitless,
negotiators should reassess their interests in pursuing a deal.

2.When it comes to preparing an information exchange strategy, Director Grande Lum suggests the
following approach:

In preparation for any negotiation use the three G’s of information exchange: get, give,
guard. First what information do you want to get or ask about? What facts of the situation do you
want to know more about? . . . [W]hat more do you want to find out about the other party’s
interests? . . . Remember, that questions can propel a negotiation forward in ways that statements
or arguments cannot.

Negotiation Nugget

A study of English labor and contract negotiations in the late 1970s found that skilled negotiators
asked twice the number of questions during negotiations than average negotiators, findings
which have been confirmed across several disciplines. Such negotiators are likely to be better
able to diagnose the possibilities for a deal, and also to have fewer misunderstandings and
disagreements in the commitment and implementation stages. See, Neil Rackham and John
Carlisle, The Effective Negotiator—Part I: The Behavior of Successful Negotiators, 2 J. of European Indus.
Tr. 6 (1978).

Then, consider what information you want to give or share. The other side can often not
meet your needs if it does not know what they are or if it does not know what is important to
you. What do you want to disclose factually that will move the negotiation forward? What do you
want to disclose that will help the other side feel more comfortable? What information do you
want to share that reveals your strength or firmness? . . .

The last category to prepare for is whether to guard or protect information. Certain
information may convey desperation or urgency, and revealing it will give the other side an
unnecessary advantage. If I am negotiating to sell a vacation condominium, I would guard the
fact that I am in desperate need of money to pay off a personal debt.

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GRANDE LUM, THE NEGOTIATOR’S FIELDBOOK: SIMPLE STRATEGIES TO HELP YOU NEGOTIATE
EVERYTHING 110 (2d ed. 2011).

1.Seeking Information

In an earlier excerpt Professor Fischer and Mssrs. Ury and Patton suggest that the two most
important questions for gathering information are “why” and “why not.” We agree. Director Lum
offers two distinct and more specific strategies for seeking information when negotiating. One
strategy is to start with general open-ended questions about needs, concerns, and desires followed
up with specific questions to demonstrate listening as well as to move the conversation forward.
He then advises following up with reflective questions to confirm understanding. The second
strategy is to ask “challenge” questions about the value on the table. Challenge questions include
the justification questions why and why not that Fisher, Patton, and Ury suggest, as well as
questions about the problems and opportunities the other side faces. Lum advises following up
with questions about the positive and negative consequences that might occur as a result of those
problems and opportunities. Lum believes that challenge and consequence questions help create
more value because they help discover the interests underlying a counterpart’s
positions. See GRANDE LUM, THE NEGOTIATOR’S FIELDBOOK: SIMPLE STRATEGIES TO HELP
YOU NEGOTIATE EVERYTHING, 93–94 (2nd ed. 2011).
———————

POINTS FOR DISCUSSION

1.There are two steps to gathering information—identification and collection. When identifying
information to gather, the first focus should be on the information that will help with creating value, typically
things categorized as preferences. What information will help confirm, identify, or lead to discovering a
counterpart’s needs and interests? Next, the focus is on other information gaps, typically facts. Is there any
other missing information that can help develop options, refine a BATNA, or assist in any other way? Finally,
the phrase “missing information” does not refer just to holes in information, but also substitutes for
information—presumptions, assumptions, and hypotheses—that have been used to assist with pre-
negotiation planning.

2.Professor Alexandra Carter suggests using the phrase “tell me . . .” as it allows the counterpart to fill
in the relevant information. Specifically, she says:

This question invites the other person to share with you (1) their view of the goal or problem
that’s brought you together; (2) any important
74
details relating to the problem or goal; (3) their feelings and concerns; (4) anything else they
feel like adding. It’s the negotiation equivalent of casting a giant net into the water to see how
much you can catch. This question is the most important question you should use, for any
negotiation, with any person, anywhere.

ALEXANDRA CARTER, ASK FOR MORE: 10 QUESTIONS TO NEGOTIATE ANYTHING, 127 (2020). Additionally,
she believes that “tell me” invites a counterpart into a conversational partnership that encourages trust and
openness. Id. at 131.

3.Do you think that “challenge” questions might be off-putting to one’s counterpart? If asked in the
wrong way, they may put your counterpart on the defensive and result in less information received. The
adage “it’s not what you say, but how you say it,” comes to mind. An exploratory, inquisitive, sincere, and
non-accusatory tone is likely to be well received. The importance of tone becomes magnified when
communicating via email and text messaging. What considerations should one take into account when
negotiating on those communication platforms?

4.How can the question “why” facilitate information-gathering about interests? Consider this example.
In late 2000, the U.S. ambassador to the United Nations, Richard Holbrooke, was faced with a difficult task.
The U.S. was more than $1 billion in arrears to the U.N. but was unwilling to pay unless the U.N. agreed to
a number of reforms including reducing the U.S. contribution to the U.N. from 25% to 22% of the U.N.’s
budget. With a hard deadline looming, Holbrooke’s team changed tactics. Rather than focusing on persuasion,
they focused on understanding why other nations would not contribute more to cover the 3% difference.
Soon his team found that countries that might otherwise agree to increase their contributions did not have
room to do so in their 2001 budgets, because they had already been finalized. Holbrooke then revised his
proposal: immediately reduce U.S. assessments from 25% to 22% to meet Congress’s deadline but delay the
increase in contributions from other nations until 2002. Once the negotiators broadened their focus to
include the issue of the timing, they could strike a deal that allowed each side to get what it wanted on the
issue it cared about most. For more information about this negotiation, see Deepak Malhotra & Max H.
Bazerman, Investigative Negotiation, Harv. Bus. Rev. 73–75 (Sept. 2007).

Negotiation Nugget

Negotiation has not traditionally been thought of as a persuasive activity, but it contains several
theoretical components of persuasion—appeals to logic, appeals to emotion, and the speaker’s
character and credibility.

5.Professor Ava J. Abramowitz instructs that asking questions serves several separate purposes. First,
questions help us persuade others. Questions force others to think more deeply about the issue as they arrive
at answers to questions.
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Second, questions help to reveal a counterpart’s needs, values, and priorities—crucial value creation
material that determines whether a deal is possible. Questions also let you control the negotiation as you
probe, confirm, clarify, and summarize. And finally, questions help expose problems in our own thinking,
and since asking a question is not the same as putting forth an idea or suggestion, questions can also mask
errors in your thinking. AVA J. ABRAMOWITZ, ARCHITECT’S ESSENTIALS OF NEGOTIATION 184–88 (2d ed.
2009).

6.Another method for eliciting information about a counterpart’s interests is to make multiple
equivalent simultaneous offers. Professors Jean R. Sternlight and Jennifer K. Robbennolt describe the
method as follows:

Offering multiple proposals for consideration at the same time can also be useful for gaining
perspective on a negotiation counterpart’s preferences. . . . By devising multiple proposals that
are all equally acceptable to the client but that differ in subtle or not so-subtle ways, the attorney
can gain information about the relative importance of different issues to the other side. Even if
none of the proposals is acceptable to the other side, obtaining reactions to different alternatives
can provide a great deal of insight that will be useful as additional proposals are created.

JEAN R. STERNLIGHT & JENNIFER K. ROBBENNOLT, PSYCHOLOGY FOR LAWYERS: UNDERSTANDING THE
HUMAN FACTORS IN NEGOTIATION, LITIGATION, AND DECISION MAKING 262 (2012).

7.The other side of the question-asking coin is listening, which we discussed in more depth in Chapter
One. Professor Charles B. Craver gives some practical tips about listening while in the heat of the information
exchange.
 Negotiation Nugget

Listening is an important skill when interviewing, negotiating, and eliciting witness testimony.
Too many times, young attorneys are so focused on the questions that they have prepared that
they fail to listen to the answers. Don’t let that be you.

Skilled negotiators actively listen and carefully observe [counterparts] during the
Information Stage. They maintain supportive eye contact to encourage further . . . disclosures and
to discern verbal leaks and nonverbal clues. They use smiles and occasional head nods to
encourage additional responses from adversaries who feel they are being heard. Active listeners
not only hear what is being said, but recognize what is not being discussed, since they understand
that omitted topics may suggest weaknesses [counterparts] do not wish to address.

76

Questioners should listen carefully for [word choices] that inadvertently disclose important
valuation information. For example [one] might say: “I have to have Item A, I really want Item
B, and I would like to get Item C.” Item A is essential—she has to have it. Item B
is important—she really wants it, but does not have to have it. Item C is desirable—she would
like to get it, but would be willing to give it up for anything better. These [expressions] disclose
the true priorities of the items being discussed.

Advocates should proceed slowly during the Information Stage, because it takes time for
the persons being questioned to decide what should be disclosed and when it should be divulged.
Patient questioning and active listening are usually rewarded with the attainment of greater
knowledge. Too many negotiators rush through the Information Stage, because they can hardly
wait to begin the distributive portion of interactions. When impatient bargainers conduct an
abbreviated Information Stage, they usually miss important pieces of information and achieve
agreements that are less beneficial than the accords they might have obtained through a more
deliberate questioning process.

CHARLES B. CRAVER, SKILLS AND VALUES: LEGAL NEGOTIATING 31 (2d ed. 2012) (emphasis in original).

8.To be a good negotiator, it helps to be curious. Dean Chris Guthrie asks whether someone who “isn’t
naturally curious about her counterpart [can] become that way?” Focusing on “situational” curiosity, which
is triggered by a particular activity or transaction, Dean Guthrie suggests the following curiosity-enhancing
strategies: 1) set “listening goals, because researchers have found that people are more likely to be curious if
they are trying to meet a challenge or goal”; 2) remember why it is helpful to listen “because researchers have
found that people are more likely to remain interested in a task when they focus on the purposes served by
performing it”; and 3) vary the means used to elicit information “because researchers have found that people
are more likely to remain interested and engaged in a task if they vary the way they perform it.” Chris
Guthrie, I’m Curious: Can We Teach Curiosity, in RETHINKING NEGOTIATION TEACHING: INNOVATIONS FOR
CONTEXT AND CULTURE 63, 65–67 (James Coben, Giuseppe De Palo & Christopher Honeyman eds., 2009).
What “listening goals” would you set for yourself when negotiating?

9.An underappreciated art of listening is noticing what is missing when people respond to questions.
Professor Melissa L. Nelken advises:
 Asking questions is only one way to gather information, and not always the most
informative one. You also have to listen for what someone omits from an answer, for answers
that are not answers or that deflect the question, for hesitations and vagueness in the responses
that you get. There is no simple formula for what such things mean, but the
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more alert you are for ways in which you are not getting information in a straightforward
way, the better able you will be to sort through the information that you get.

MELISSA L. NELKEN, NEGOTIATION THEORY AND PRACTICE 44 (2d ed. 2007).

2.Sharing Information

Earlier we noted Director Lum’s suggestion that when it comes to information sharing,
negotiators should determine which information to “give and guard” as part of his “3 G’s”
information strategy. The following excerpt from Professor Menkel-Meadow provides a sound
strategy for determining which information should be given and which should be guarded.

CARRIE MENKEL-MEADOW, KNOW WHEN TO SHOW YOUR HAND

Negot. Newsletter, June 2007, at 1, 1–3

Suppose that two entrepreneurs, a marketing expert and an IT specialist, are thinking about
merging their consulting firms to create a greater synergy of services. As their talks unfold, each
wonders how much information to disclose. Should they bring up discussions with other potential
partners? When should they share proprietary business data? What if one is planning to retire in
two years, and the other is starting a family—should they share this personal information?
***
In all your negotiations, you must calculate the risks and rewards of sharing information with
your counterpart. Here, I will show you which factors to consider when making such decisions,
when to ask for information directly, and when to seek it elsewhere.
A wealth of useful information
Before talks begin—and, if possible, even before your initial contact with your counterpart—
list the information you need to resolve your dispute or to build a strong deal. Also anticipate the
information the other side will want from you, and consider how you’ll respond to these queries.
Information typically falls into these categories:
• Facts: Information about relevant past events, goods, and services;
ongoing obligations and liabilities; parties needed to conclude talks; and so
forth.
78

• Opinions, values, and predictions: Information subject to different

interpretations, such as a company’s value, the likely income from a new
product, the outcome of a future court decision, or whether the dollar will
rise or fall.
 • Preferences: Information that negotiators express as their needs, interests,
goals, objectives, desires, bottom lines, and reservation point.
Once you have identified the information you need and may be asked to reveal, you’re ready
to consider the reasons you and your counterpart might choose to disclose or to conceal it.
When to show your hand
For legal, ethical, and strategic reasons, you might choose to disclose these four types of
information:
1.Information required by law.
The last thing you want is for a good deal to be voided in post hoc legal proceedings. To fulfill
legal standards (and your own code of ethics), research what you must disclose in a particular
jurisdiction or realm of negotiation.
Pertinent laws include those on fraud and misrepresentation, disclosure law in securities and
real estate, and consumer protection statutes. Mandatory disclosure rules can be national (such as
the Sarbanes-Oxley Act), state, or local (such as those concerning hazardous-waste disposal).
In addition, ethics and disclosure rules apply to various professions. Lawyers and accountants
may have to reveal adverse financial data and irregularities, real-estate brokers must reveal known
defects in a property, and underwriters must disclose many conditions of a public offering.
2.Information in the public domain.
In the age of Google searches and international networking, much information that was
formerly hidden is now at our fingertips. Before deciding to conceal a piece of information,
consider whether your counterpart is likely to discover it anyway. Here are some types of
information to which the other side (and you, too!) may have access:

Note

In Chapter 7, we point to the increasing availability of data to learn about and analyze historical
judicial and lawyer behaviors.

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• Public information available on the Internet, including financial statements

of public companies, disclosure statements for smaller companies and
nonprofits, news reports, professional biographies, and lawsuit settlements.
• Proprietary information available from private investigators and sources
who have dealt with you in the past.
• Information extracted through subpoenas, depositions, discovery, and
other legal processes or made public through press leaks.
3.Information that could inspire reciprocation.
In most negotiations, a pattern of reciprocity tends to develop. If you don’t reveal key
information, your counterpart may withhold in response. Failure to disclose can prevent you from
getting the information you need.
 Concealing information may be especially unwise when you’re trying to build a relationship.
Returning to the case of the two entrepreneurs, suppose that Mindy, the marketing expert, is trying
to decide whether to reveal to Paul, the IT specialist, that she plans to retire in two years. Paul
might view this information as a chance to grow the business on his own—or as a betrayal of the
partnership. Hiding her plans not only could sour the relationship and the merger but also could
damage Mindy’s reputation in the industry and the community.
4.Potentially damaging facts and needs.
It may sound counterintuitive, but sometimes you can benefit from revealing information that
seems too risky to disclose. Consider how a trial lawyer might handle the possible revelation of
damaging information about her client: by bringing it up during direct examination so as to
minimize the odds of a disaster during cross-examination. Similarly, skillful negotiators choose to
reveal and explain carefully information that might trouble the other side.
As social psychologist George Homans pointed out in the early 1960s, revealing preferences
often illuminates complementary (rather than competing) goals and values. Mindy certainly would
choose to disclose her impending retirement if she’s looking for someone to carry on her business
and suspects that Paul would love such an opportunity.
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When to hold your cards

Now let’s consider four types of information that may be best kept under wraps.
1.Sensitive or privileged information.
It can be tough to decide whether to disclose private or sensitive information, such as trade
secrets and financial data, as well as your preferences (targets, reservation points, needs, and
interests). This information is often necessary to identify tradeoffs and create value, but there’s also
the risk that your counterpart will take advantage of your disclosure. If Mindy reveals her retirement
plans to Paul, he may try to bargain for a greater share of future profits.
***
2.Information that isn’t yours to share.
When you negotiate as someone’s agent—whether as a lawyer, a broker, or your firm’s
representative—disclosure decisions may not be yours to make. Instead, you’ll first need to discuss
the risks and benefits discussed here with your principal. Even if information doesn’t technically
“belong” to someone else, disclosure might hurt that person. Suppose you’re negotiating a
purchase from one supplier. You could be tempted to disclose another supplier’s bottom line—
but it might be wise to consult this party first.
3.Information that diminishes your power.
If you have less power than your counterpart, think through the potentially negative
consequences of making “information concessions.” Physically injured plaintiffs often are tempted
to offer information about their current injuries in return for an early settlement, though they might
procure greater damage awards later if longer-term injuries emerge. And in an overheated real-
estate market, the bidder who expresses the greatest desire for a given house risks being exploited
by a seller with multiple offers. Evaluate whether your desire for a given outcome might cause you
to reveal too much and be exploited.
4.Information that may fluctuate.
“Facts” may change over time; prices and preferences certainly will. When important
information seems unstable, you might choose to wait to reveal it or else seek a deal provision to
later modify the information you share. Contractual contingencies allow you and your counterpart
to “bet” on your differing predictions; you also can add clauses that permit renegotiation
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should facts or conditions change. Mindy and Paul might decide that if their joint company
nets a certain profit in several years, she will take a percentage as retirement income but put off
retirement if this goal is not realized.
———————

POINTS FOR DISCUSSION

1.There is widespread agreement among those who favor the value-creating approach to negotiation
that negotiators need clear communication to help develop as wide a range of potential options as possible.
Accentuating this point, Professor Menkel-Meadow has famously stated, “In short, there is no incentive to
dissemble.” Carrie Menkel-Meadow, Toward Another View of Legal Negotiations: The Structure of Problem Solving,
31 UCLA L. Rev. 754, 822 (1984). Research supports this conclusion, finding that disclosing one’s priorities
to a counterpart leads to better joint outcomes. See Simone Moran & Ilana Ritov, Initial Perceptions in
Negotiations: Evaluation and Response to “Logrolling” Offers, 15 J. Behav. Decision Making 101 (2002); Ilana Ritov
& Simone Moran, Missed Opportunity for Creating Value in Negotiations: Reluctance to Making Integrative Gambit
Offers, 19 J. Behav. Decision Making 1 (2006). Consistent with the excerpt above, however, Menkel-Meadow
also points out that blindly sharing information is ill advised.

On the other hand, totally uninhibited information sharing may be as dysfunctional as

withholding information. In experiential simulations Pruitt & Lewis found that there was not
necessarily a correlation between free information exchange and joint profit. Instead, joint profit
was associated with information processing—that is, the ability to listen to, receive, and
understand the information and how it related concretely to the problem. Furthermore,
information sharing in a thoughtless and unrestricted fashion may lead to the sharpening of
conflict as value differences are revealed in competing goals and needs. In problem-solving
negotiation, it is crucial to understand the usefulness and function of particular pieces of
information—such as exploring how strongly one party desires something—because each piece
is related to possible solutions. Problem solvers must determine what information is needed and
why, and must be able to absorb information from the other side to test assumptions about needs,
goals, and objectives.

Carrie Menkel-Meadow, Toward Another View of Legal Negotiations: The Structure of Problem Solving, 31 UCLA L.
Rev. 754, 822–23 (1984).

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2.When it comes to specifics, negotiators need to determine what kind of response is suitable for an
open-ended question, and what is best suited for a direct question. If disclosure of certain information is
anticipated but the time is not right, does one simply deflect the question by answering a question she would
rather answer? Or does she signal some receptiveness and say, “let’s get back to that in a moment” and delve
into another topic? If a question aims directly at some information she wants to guard, how should she signal
that the requested information is off limits without damaging the information exchange?

Negotiation Nugget

Open-ended questions are questions that cannot be answered with a simple “yes” or “no.”
Rather, they require one to provide a lengthier answer that helps provide insight as to what the
responder believes to be important.

If a negotiator is being more strategic in disclosing information, there are several tactics, known as
blocking techniques, that can help in avoiding the disclosure of strategic information. Such tactics include:

• changing the subject,

• delaying instead of answering immediately,

• answering a different question,

• responding with your own question,

• asking for clarification,

• discounting the question,

• answering a specific question by focusing on the general,

• answering the general by focusing on the specific, and

• answering only part of a question.

See MARTIN E. LATZ, GAIN THE EDGE! NEGOTIATING TO GET WHAT YOU WANT 64–66 (2004). Even
though these techniques can seem somewhat shady, negotiators (and politicians) use them all the time. Those
who use them need to be cognizant of protecting their credibility as well as their information. And, when
collecting information, negotiators need to be on guard for these techniques and to keep asking probing
questions when these techniques are being employed.

Digging Deeper

If these “blocking techniques” are shady, does that mean that they are unethical? Are any more
disturbing than the others?

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3.The information exchange stage is also where negotiators evaluate their respective leverage. This
brings forth an important point: Should negotiators reveal their BATNA’s? According to Professor Shell,

If you have attractive alternatives or good sources of normative leverage or can easily live
without the other party’s cooperation, the information exchange stage is the time to signal this to
the other party. . . . You can either send a firm signal that you have the power to demand a
favorable deal and intend to insist on one, or you can show your power and indicate you intend
to be flexible in order to build goodwill for the future.
G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR REASONABLE
PEOPLE 152–53 (2d ed. 2006). And if your leverage is not so good? He advises one of two approaches. The
first is to emphasize the inherent uncertainty of the future. The second is to simply acknowledge an obvious
weakness. “[I]t may help both your credibility and your communication to personalize the situation as much
as possible, arrange for a face-to-face meeting, candidly acknowledge the other side’s power, and proceed on
that basis.” Id. at 153.

Digging Deeper

Rather than blocking, what if a negotiator lies in response? The issue of lying in a negotiation is
covered in detail when we discuss negotiation ethics in Chapter 5.

4.BATNA disclosure is not a decision to be taken lightly. Director Lum advises that negotiators think
through the consequences of disclosure.

Negotiation Nugget

Like BATNA, negotiators should carefully consider whether to disclose their reservation point
in a negotiation. A good basic rule is to never disclose your reservation point unless you have
exhausted all other options and are ready to walk away to your BATNA.

What are the factors to consider in disclosure? Once your goal [to be accomplished through
disclosure] is clear, you still have to take into account a number of factors before deciding whether
or not to disclose your BATNA. Examine the ramifications disclosure will have on the
negotiation itself and on the other party. Given these, will you be able to accomplish your goal,
or will it get sidetracked? Sometimes, no matter how artfully you state your BATNA, sharing it is
a declaration of war, so consider a worst-case scenario and . . . your ability to walk.

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GRANDE LUM, THE NEGOTIATOR’S FIELDBOOK: SIMPLE STRATEGIES TO HELP YOU NEGOTIATE
EVERYTHING 107 (2d ed. 2011).

5.Options serve an interesting and varied role as bridges from the information exchange stage of
negotiation to the offer and concession stage. When working with an adversarial approach, options simply
morph into traditional first offers or a menu of proposals laid out to determine which to work upon. When
working with a value-creating mindset, options are not only developed as part of a negotiator’s preparation,
they are also developed during the negotiation itself with the assistance of one’s counterpart to segue into
the offer and concession stage. One typical method of doing so is brainstorming. Participating in a
brainstorming session is difficult enough when everyone is working as a team, so how does one brainstorm
with a negotiation counterpart? Director Lum makes the following suggestions.

Good negotiators create a comfortable atmosphere for discussing options. This is a core issue
when it comes to brainstorming. . . . However, some people are so used to positional concessions-
based negotiating that it is difficult to brainstorm. They will latch onto any idea that might suit
them, or they are unwilling to create new options for fear of commitment. Be clear with each
other that all ideas will be put on the table without commitment—that you will create value by
investigating many possibilities.
 Another impediment to brainstorming is the fact that many people are more comfortable
critiquing ideas then coming up with them—many are more accustomed to finding the one “right”
answer from a list of choices. Articulate that the goal is to get ideas out there; evaluating will come
later.

GRANDE LUM, THE NEGOTIATOR’S FIELDBOOK: SIMPLE STRATEGIES TO HELP YOU NEGOTIATE
EVERYTHING, 99 (2nd ed. 2011). Although difficult to do, brainstorming can be a great way of uncovering
interests as new options emerge. And as negotiators enter the phase of deciding among a variety of options,
they are transitioning to the offer and concession stage, discussed in the following section.

6.With the new information gleaned during the information exchange stage, negotiators should take a
moment to reassess their negotiation planning. How has their understanding of their counterpart’s interests,
needs, BATNA, and any other factors changed? With this information in mind, negotiators should assess
whether to alter strategies, objectives, and goals going forward.

C.OFFERS AND CONCESSIONS

Offers and concessions are the means for claiming value in negotiations. Thus, this stage is
what most people imagine when they think of negotiation. Effective negotiators take several factors
into consideration during this stage, including objective criteria, messaging, timing, BATNA, and
reservation
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points. Context matters as well. Understanding and planning how to maneuver through a
negotiation’s bargaining stage may be the most neglected aspect of thoughtful negotiation
preparation.

1.Standard Concession Practice

The following excerpt by Professor G. Richard Shell relays the sound conventional wisdom
of offers and concessions. As you read, note that it discusses how different negotiation approaches
manage offers and concessions.

G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR

REASONABLE PEOPLE
166–72 (2d ed. 2006)

When the stakes are all that matter, research shows that a firm concession strategy works best.
In simple, price only negotiations . . . classic haggling is the rule: Open optimistically, hold for a bit,
show a willingness to bargain, then make a series of progressively smaller concessions as you close
in on your expectation level.
***
In more important, high-stakes deals, you should also be careful not to make big concessions
too early. Start slowly. Why? Because big moves made early in bargaining can confuse the other
side.
***
. . . When you make large concessions early in high-stakes transactional bargaining, you send
a set of messages. One message is: I really want this deal. That message has leverage implications, and
the other side may develop high expectations regarding the final price. It will want to test this
hypothesis. . . .
The second message you send is: The issues I conceded were not important to me. . . . The other party
may give you zero credit for this concession because you gave it up so easily.
***
If many issues are on the table, concession making in high-stakes negotiation often takes the
form of “issue trading” instead of simple haggling. Negotiation scholars use the term “distributive
bargaining” to describe simple haggling (people are “dividing the pie”) and the term “integrative
bargaining” to describe the more complex process of trading off between issues (people are
“making the pie bigger” by matching or “integrating” their
86
interests, priorities, and differences). Many deals contain both concession-making strategies.
How do classic hagglers handle a high-stakes negotiation with many different issues? Simple:
They attack each issue one at a time and use the distributive procedure . . . to reach their desired
expectation level on each issue. They start high, concede slowly, and close on issue 1. Then they
repeat the process on issue 2. And so on.
***
How does one engage in integrative bargaining? By identifying the issues, fears, and risks that
are most important to each side and then “logrolling”—accommodating each other’s most
important interests and priorities in exchange for reciprocal accommodations.
. . . [T]he rule of thumb for integrative bargaining is to make big moves on your “little” (less
important) issues and little moves on your “big” (most important) issues.
***
After a discussion of all of the issues (without making any concrete opening offers on any of
them), issue trading often proceeds through “package bargaining.” One side proposes a total
package, including a demand on each issue. The other side responds with a total package of its
own, reflecting its aspirations. Up to this point, the procedure looks just like haggling, but it changes
after the openings.
In their next move, the side that opened may make concessions on one or two of its “little”
issues, making a display of its sacrifices, but hold firm on its more important priorities. The other
side reciprocates, and after several rounds each side begins to figure out which issues are more
important to the other.
By dealing with entire packages and agreeing that no issue is closed until all issues have been
decided, both parties retain a high degree of flexibility. If, later in the process, they find themselves
at an impasse over an issue considered vital (such as price), they have the option of going back to
earlier packages and exploring different combinations without being locked into any particular
concession on any particular issue.
Parties often trade issues in clusters, using a formulation well known to negotiation experts: IF
you give us what we want on issues A and B, THEN we might consider concessions on issues X and Y. The
“if . . . then” formula ensures that you never make a concession without linking it to a mutual
concession from the other party. . . . The parties may eventually need to haggle and fight over
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some of the issues that both think are important, but they have “issue-traded” on the ones
that each can concede at a relatively low cost.
***
[W]here both the future relationship and the stakes are roughly equal in importance for both
sides, a variety of different bargaining and problem-solving procedures work. The goal is to address
as many priorities as possible, make sure that each side gets its “fair share” on issues such as price,
and maintain good working relationships between the parties going forward.
Because the stakes matter, you should still come to the table with high expectations. You will
want to move slowly on your least important issues first and use the conditional “if . . . then”
formulation for concession making. All trades should be reciprocal.
Because the relationship matters to both sides, more imaginative kinds of bargaining tactics
are both possible and desirable. . . . Aggressive, hardball moves and transparent gambits do not
work well. They are too bruising to personal feelings and usually obscure the shared interests the
parties bring to the table. Instead, each party needs to probe more deeply into the real needs
underlying the other side’s demands and seek imaginative solutions. . . .
***
Interest-based, problem-solving approaches to bargaining work well in [these] situation[s].
Why? Because they give parties a chance to “make the pie bigger” both within the context of the
transaction at hand (by using integrative bargaining techniques) and the larger framework of the
parties’ ongoing relationship (by creatively exploiting their ability to help each other in the future).
———————

POINTS FOR DISCUSSION

1.The back-and-forth of typical offer and concession behavior rests upon the reciprocity norm
identified by Professor Robert B. Cialdini in his important book INFLUENCE: SCIENCE AND PRACTICE (5th
ed. 2009).

The general rule says that a person who acts in a certain way toward us is entitled to a similar
return action.

***

The reciprocation rule brings about mutual concession in two ways. The first is obvious; it
pressures the recipient of an already-made
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concession to respond in kind. The second, while not so obvious, is pivotally important.
Because of a recipient’s obligation to reciprocate, people are freed to make the initial concession
and, thereby, to begin the beneficial process of exchange. After all, if there were no social
obligation to reciprocate a concession, who would want to make the first sacrifice? To do so
would be to risk giving up something and getting nothing back. However, with the rule in effect,
we can feel safe making the first sacrifice to our partner, who is obligated to offer a return sacrifice.
 Because the rule for reciprocation governs the compromise process, it is possible to use an
initial concession as part of a highly effective compliance technique. The technique is a simple
one that we will call the rejection-then-retreat technique, although it is also known as the door-
in-the-face technique. Suppose you want me to agree to a certain request. One way to increase
the chances that I will comply is first to make a larger request of me, one that I will most likely
turn down. Then, after I have refused, you make the smaller request that you were really interested
in all along. Provided that you structured your requests skillfully, I should view your second
request as a concession to me and should feel inclined to respond with a concession of my own—
compliance with your second request.

Id. at 36–38.

To prove the power of the strategy, Professor Cialdini set up an experiment where two groups of
volunteers would ask college students if they would be willing to serve as volunteer chaperones for a group
of juvenile delinquents on a day trip to the zoo. One group made a straightforward request which 83% of
the requests were refused. The other group first asked college students to act as counselors for juveniles for
two hours a week over a two-year period. Only after the request was refused were they asked to chaperone
the two-hour zoo trip. With this group the acceptance rate was 51%, a rate three times higher. Id. at 38–39.

2.The concession tactic that Cialdini describes above entails offering a concession as a way to induce
their counterparts to do the same. Making concessions is not so easy, however, and the two negotiators are
not likely to value their respective concessions in the same way. Psychologists have found that individuals
experience more pain from a loss than they experience pleasure from a gain of the same size—a phenomenon
known as loss aversion. As applied to negotiation, one result can be concession aversion, in which a
negotiator experiences his own concessions as “losses” from his prior position. He will see those concessions
as being bigger than will his opponent, who experiences them as “gains.” Making concessions is also
complicated by “reactive devaluation.” Research on this phenomenon suggests that negotiators may devalue
proposals simply because they have been offered by their “opponent.” For a discussion, see Richard Birke
& Craig R. Fox, Psychological Principles in Negotiating Civil Settlements, 4 Harv. Negot. L. Rev. 1, 48–49 (1999).

89

3.In addition to reciprocity, negotiators can use several other psychological techniques to persuade their
counterparts to make valuable concessions:

• Liking—“People prefer to comply with requests made by those they know and
like. People tend to like those who are physically attractive; those with whom they
share something in common; those with whom they are familiar; and those who
pay them compliments.” Chris Guthrie, Courting Compliance, in THE
NEGOTIATOR’S FIELDBOOK: A DESK REFERENCE FOR THE EXPERIENCED
NEGOTIATOR 371, 372 (Andrea Kupfer Schneider & Christopher Honeyman eds.,
2006).

• Social proof—People “view a behavior as correct in a given situation to the degree

that we see others performing it.” ROBERT B. CIALDINI, INFLUENCE: SCIENCE
AND PRACTICE 99 (5th ed. 2009).

• Authority—“Individuals often feel an obligation to comply with those who are in

real or perceived authority positions.” Chris Guthrie, Courting Compliance, in THE
NEGOTIATOR’S FIELDBOOK: A DESK REFERENCE FOR THE EXPERIENCED
 NEGOTIATOR 371, 374 (Andrea Kupfer Schneider & Christopher Honeyman eds.,
2006).

• Scarcity—“ ‘[O]pportunities seem more valuable to us when they are less available.’
Scarcity induces compliance in large part because it threatens our freedom of
choice (‘If I don’t act now, I will lose the opportunity to do so.’)” Id. at
374 (quoting Cialdini).

4.An underappreciated aspect of making offers and counteroffers is the messaging surrounding them.
In an interesting study described by Deepak Malhotra and Max H. Bazerman, Professor Ellen Langer and
her colleagues found that justifying one’s requests can make a difference in whether others will accede to a
request. As part of the study, they had every copy machine in their university’s library but one shut down
(this was long before the internet age). As you might imagine, the one remaining copy machine was in high
demand.

The researchers were interested in finding out what would convince people to let others cut in
front of them. In some instances, a researcher simply said, “Excuse me, I have five pages. May I
use the Xerox machine?” Sixty percent of those approached this way allowed the researcher to
cut in front of them. Other people were approached with a slightly different request: “Excuse me,
I have five pages. May I use the Xerox machine because I have to make some copies?” As you can see,
the second approach added an entirely inane justification (obviously, the reason for wanting to
cut in line at the copy machine is to make copies!). What was the response this time? Ninety-three
percent of those
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approached with this request allowed the researcher to cut in front of them!

DEEPAK MALHOTRA & MAX H. BAZERMAN, NEGOTIATION GENIUS: HOW TO OVERCOME OBSTACLES
AND ACHIEVE BRILLIANT RESULTS AT THE BARGAINING TABLE AND BEYOND 167 (2007). The lesson we
learn from this is that negotiators should always have a principled justification for any request made while
negotiating. See Ellen Langer, Arthur Blank, and Benzion Chanowitz, The Mindlessness of Ostensibly Thoughtful
Action: The Role of “Placebic” Information in Interpersonal Interaction, 36 J. Personality & Soc. Psych.635 (1978).

5.Continuing with the theme of messaging, mediator J. Anderson Little believes the messaging around
offers and counteroffers is often misunderstood. This is because many negotiators fail to make credible initial
offers or initial counteroffers, thereby causing their counterparts to make reactionary counteroffers out of
anger and frustration. As a result, their proposals do not convey clear and accurate messages about the
boundaries of the negotiation’s bargaining zone. J. ANDERSON LITTLE, MAKING MONEY TALK: HOW TO
MEDIATE INSURED CLAIMS AND OTHER MONETARY DISPUTES 66–69 (2007).

To combat this problem, Martin E. Latz advises that the messaging accompanying offers be specific
and detailed, focused first on rationales and standards before mentioning terms. Such offers, he suggests, are
perceived as more thoughtful, reasoned, serious, and thorough. They increase the chances of getting a
response that is equally detailed. And starting with rationales and standards helps demonstrate reasonability
while decreasing interpersonal difficulties and the likelihood of quick impasse. As negotiators plan their
concession moves, they should also practice the messaging surrounding their offers and
concessions. MARTIN E. LATZ, GAIN THE EDGE: NEGOTIATING TO GET WHAT YOU WANT 183–85 (2004).

6.Imagine that you are in a negotiation that you thought was going well. Opposing counsel then makes
an outrageous demand, entirely outside any reasonable settlement range. You now know this negotiation will
take much longer and be more difficult than you had anticipated—and you know your client will not be
happy with this news or with you. How do you feel about opposing counsel now? Attribution theory is the
study of how we interpret the actions of others. When another person’s action hurts us, we search for the
cause. Was the other person’s action intentional or not? Was it caused by the person’s disposition or the
circumstance in which the person found herself? How much control did the person have over what happened?
Interestingly, we tend to underestimate the extent to which people’s behavior is influenced by the
circumstances in which they find themselves. Instead, we tend to emphasize explanations that focus on the
general disposition and intentions of the person. This is called the fundamental attribution error—
fundamental because we all do it and error because empirical study establishes that situational influences
have more sway than we are inclined to think. See Lee Ross, The Intuitive Psychologist and His
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Shortcomings: Distortions in the Attribution Process?, in 10 ADVANCES IN EXPERIMENTAL SOCIAL
PSYCHOLOGY 174, 184–87 (Leonard Berkowitz ed., 1977).

As an example, Professor Keith Allred notes: “[R]esearch indicates that in observing a person at an
airport yelling at an airline agent, one tends to overattribute the behavior to bad temper and underattribute
it to circumstances, such as having recently been the victim of recurring unfair treatment by the airline.”
Keith C. Allred, Anger & Retaliation in Conflict: The Role of Attribution, in THE HANDBOOK OF CONFLICT
RESOLUTION: THEORY AND PRACTICE 237, 240–41 (Morton Deutsch, Peter T. Coleman & Eric C. Marcus
eds., 2d ed. 2006). At the same time, we are more likely to take into account situational factors when making
attributions about our own behavior than we are when we are thinking about other people—a phenomenon
known as the actor-observer effect. Edward E. Jones & Richard E. Nisbett, The Actor and the Observer: Divergent
Perceptions of the Causes of Behavior, in ATTRIBUTION: PERCEIVING THE CAUSES OF BEHAVIOR 82 (Edward E.
Jones et al. eds., 1972).

7.As every negotiation shifts into the offer and concession stage, someone must make the first offer.
That is, someone must make the initial distributive proposal that could result in an agreement. The question
plaguing negotiators, then, is whether they should make the first offer or allow or compel their counterpart
to do so.

Based on a series of experiments investigating how first offers operate, Professor Adam D. Galinsky
and his colleagues developed the Information-Anchoring Model of First Offers. This model posits that first
offers can have two primary effects. First, first offers act as anchors that influence final outcomes. Second,
first offers may convey information about the negotiator’s central concerns and priorities. When a
negotiation is purely distributive, the anchoring effect of the first offer tends to impart a first-mover
advantage because the first offer sets an anchor. In integrative negotiations, however, the effects of first
offers are more complex. The researchers found that when first offers were uninformative as to the
negotiator’s priorities, the anchoring effect dominated and the negotiator making the first offer claimed more
value. On the other hand, when first offers disclosed information about priorities—for example, “issue x is
really the most important part of this deal”—joint gains and integrative insights were greater, but less value
was claimed by the negotiator who made the first offer. Characteristics of the negotiation counterpart also
turned out to be relevant. Negotiators who made first offers claimed more value when their counterpart had
a prosocial orientation. But more self-oriented counterparts leveraged the information revealed by the first
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 offer to make low-cost concessions in exchange for larger shares of the negotiation’s value. D.D.
Loschelder, R. Trottschel, R.I. Swaab, M. Friese, & A.D. Galinsky, The Information-Anchoring Model of First
Offers: When Moving First Helps Versus Hurts Negotiators, 101 J. Applied Psych. 995 (2016).

Digging Deeper

A lot of people simply try to avoid making first offers. In addition to those identified by Professor
Galinsky, what are the advantages and disadvantages to making first offers?

8.If you are going to make a first offer, what should it be? Professors Malhotra and Bazerman advise:
“You should never make an offer so extreme that it cannot be stated as follows: ‘I would like to propose X,
because . . .’ If you cannot finish this sentence in any meaningful way, you are probably asking too
much.” DEEPAK MALHOTRA & MAX H. BAZERMAN, NEGOTIATION GENIUS: HOW TO OVERCOME
OBSTACLES AND ACHIEVE BRILLIANT RESULTS AT THE BARGAINING TABLE AND BEYOND 35 (2007).
Professor Shell recommends that if a negotiator has decided to open, she should offer “the highest (or lowest)
number for which there is a supporting standard or argument enabling . . . a presentable case.” G. RICHARD
SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR REASONABLE PEOPLE 160 (2d ed.
2006).

Negotiation Nugget

When wondering who should make the first offer, the general rule is that sellers go first. Usually,
it’s easy to identify which party should be considered “the seller.” For example, in litigation the
plaintiff is considered the seller because s/he is selling a legal claim. But, when there are several
cross-claims and counterclaims, determining the seller can be quite complicated.

This advice is borne out by research suggesting that negotiators who begin with optimistic and
justifiable positions often fare quite well. According to Dan Orr and Dean Chris Guthrie:

Due to a phenomenon that psychologists call “anchoring,” we are often unduly influenced
by the initial figure we encounter when estimating the value of an item. This initial value serves
as a kind of reference point or benchmark that anchors our expectations about the item’s actual
value.

Negotiation and dispute resolution scholars have observed that this phenomenon could
have an impact on negotiation. In a number of studies, researchers have shown that opening
offers and demands, insurance policy caps, statutory damage caps, negotiator aspirations, and
other “first numbers” can influence negotiation outcomes in transactions and settlements. What
no researcher has done, however, is assess how potent this phenomenon is.

***

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Our meta-analysis demonstrates that anchoring has a powerful influence on negotiation

outcomes. Across the studies in our sample, we find a correlation of 0.497 between the initial
anchor and the outcome of the negotiation. . . .
 In lay terms, the 0.497 correlation means that every one dollar increase in an opening offer
is associated with an approximate fifty-cent increase in the final sale price. A simple conversion
provides another estimate of the impact anchoring can have on a negotiation. The square of a
correlation provides an estimate of the amount of variance that it explains. The r-squared value
of the correlation in our study is 0.247. In general terms, this mean that nearly 25 percent of the
difference in outcomes among negotiations can be accounted for as a function of an opening
offer or other initial anchor. (This finding is consistent with other research showing that an
opening offer and initial counteroffer account for 57.6 percent of the variance in negotiated
outcomes.)

Dan Orr & Chris Guthrie, Anchoring, Information Expertise, and Negotiation: New Insights from Meta-Analysis, 21
Ohio St. J. on Disp. Resol. 597, 597–98, 621–22 (2006).

2.Creating Value Through Offers and Concessions

Consider the following advice for negotiators who want to use a value creation approach
when negotiating a settlement in litigation.

ROBERT H. MNOOKIN, SCOTT R. PEPPET & ANDREW S. TULUMELLO, BEYOND

WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES
240–42 (2000)

[W]e advise lawyers interested in moving to the interest-based table to deliver three explicit
messages to their counterparts. First, looking for trades may be good for both sides. Moving to the
interest-based table may strengthen the parties’ relationship, facilitate value-creating deals, and ease
distributive tensions at the net-expected-outcome table. Second, looking for trades does not require
or imply a ceasefire. Litigation can continue, and a party need not disclose information at the
interest-based table that he feels will undermine his position at the net-expected-outcome table.
Finally, discussing interests does not signal weakness. Indeed, a willingness to broaden the scope
of negotiations can be framed as a sign of strength and confidence.
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Searching for Trades

If the other side is willing to try to convert your dispute into a deal, you must first negotiate a
process. If you have thought carefully about the other side’s interests and come up with options
that meet those interests, you may be tempted to unveil all your ideas at once, as in: “I know what
you really want, and I’ve got the solution that gives you what you want.” This is a dangerous
tendency, and it is unlikely to work. Even if you have guessed right about the other side’s interests,
he is likely to reject what you propose, either because he has not been given an opportunity to
speak for himself or because of reactive devaluation.
Instead, jointly explore what each side cares about and why, and what each side hopes the
lawsuit will accomplish. Think broadly—don’t just include obvious interests related to the lawsuit,
such as “settle quickly” or “receive fair compensation.” Also consider interests beyond the scope
of the litigation. If two businesses are involved, what are their general business interests? To sell
more product? Attract more customers? Expand geographically? Specialize in some area? Reduce
costs? What are the interests of the individuals who run those businesses? What synergies exist?
Can one side provide the other side with goods or services in a mutually advantageous way? What
differences exist between the parties in resources, capabilities, and preferences? How can they trade
on those differences?
In some cases, the parties may have important interests beyond the dollar amount of damages
at issue. A defendant in an employment discrimination suit may worry about its reputation.
Plaintiffs bringing a civil rights complaint against a police department may be interested in an
admission of wrongdoing and changing police practices and policies in the future. The seller in a
long-term supply contract may have an interest in establishing a more flexible delivery schedule in
order to respond to market changes.
Also consider involving clients more at the interest-based table than at the net-expected-
outcome table. Of course, if an attorney is accustomed to negotiations that focus on assessing the
net expected outcome of litigation, she may not be comfortable with having her clients play an
active role at the bargaining table. Relinquishing control can be difficult. But as we have noted,
clients often understand their interests and the relative priorities among those interests better than
their lawyers do, and they can often be very helpful at the interest-based table.
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Finally, consider involving nonparties in searching for trades. The tendency in legal dispute
resolution is to focus only on those people or institutions that are named parties in the litigation
and to forget that each side has many other relationships that may be affected by the lawsuit.
Adding some of these players at the interest-based table can be helpful. If, for example, a
building owner and a general contractor are having a dispute over payment, they might bring in
an official from the lending institution underwriting the project to assist with their negotiation. If
they find a value-creating trade that requires additional lending, this official will be indispensable
to making their creative solution possible. Similarly, in a dispute among coauthors over copyright
issues, it may be helpful to bring in a representative of the publisher. As the frame of the
negotiation widens, outside parties may be essential to devising sophisticated trades.
———————

POINTS FOR DISCUSSION

1.Under what circumstances are lawyer-negotiators most likely to favor a value creation approach to
settlement discussions? What difference might it make if the disputing clients expect to have an ongoing
relationship? Will it matter whether the litigants are “one-shotters” or “repeat players” in litigation? What
difference might the relationship between the attorneys make?

2.How central should law be to the settlement process? Some believe that settlements should reflect
what a court of law would decide; others believe that settlement should simply reflect the parties’ preferences.
Others, like lawyer-mediator Gary Friedman believe that law is relevant but that it should not be assumed to
be determinative—i.e., that “ ‘the law’ may point to relevant principles or values which the parties might
want to consider in approaching their own resolution of the issues.” GARY J. FRIEDMAN, CENTER FOR THE
DEVELOPMENT OF MEDIATION IN LAW TRAINING MATERIALS, MEMO #6 (1983).

Reflecting this latter view at a more fundamental level, Professors Mnookin and Lewis Kornhauser say
negotiators “bargain in the shadow of the law.” Writing in the context of divorce negotiations, they state:
 Digging Deeper

Is it fair to say that the law is a form of objective criteria discussed earlier in Chapter Two?

Divorcing parents do not bargain over the division of family wealth and custodial
prerogatives in a vacuum; they bargain in the shadow of the law. The legal rules governing alimony,
child support, marital property, and custody give each parent certain claims based on what each
would get if
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the case went to trial. In other words, the outcome that the law will impose if no agreement
is reached gives each parent certain bargaining chips—an endowment of sorts.

Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law, 88 Yale L. J. 950, 968 (1979).

3.Some commentators have argued that the mindset required for litigating a case to verdict is so
different from the mindset required for settlement that clients might benefit from hiring special “settlement
counsel.” Indeed, some clients do retain counsel to play this sole role. See e.g., Jim Golden, H. Abigail Moy
& Adam Lyons, The Negotiation Counsel Model: An Empathetic Model for Settling Catastrophic Personal Injury Cases,
13 Harv. Negot. L. Rev. 211 (2008).

3.Apologies

One issue that often comes up in dispute resolution is that of apologies. This makes sense
given that negotiations surrounding litigation involve a sense of being wronged, and many people
have a dignitarian interest in having this harm acknowledged. Indeed, it can be the most important
issue to address, regardless of how the dispute actually presents itself.

Negotiation Nugget

For a more robust discussion of this research, see Jennifer K. Robbennolt, Apologies and Legal
Settlement: An Empirical Examination, 102 Mich. L. Rev. 460 (2003).

Yet as most of us can probably appreciate from our personal experience, not all apologies are
effective. In fact, some apologies can make the situation worse. So, for the negotiator who senses
an apology may be appropriate, it is important to consider the nature of the apology and its value
to the parties in reaching settlement. In the following excerpt, Professor Robbennolt reports on
her empirical study of these questions.

JENNIFER K. ROBBENNOLT, APOLOGY—HELP OR HINDRANCE? AN EMPIRICAL

ANALYSIS OF APOLOGIES’ INFLUENCE ON SETTLEMENT DECISION MAKING
10 Disp. Resol. Mag. 33, 33–34 (2003–2004)

Recently, I conducted a series of experimental studies designed to begin a systematic

examination of whether, in what ways and under what conditions apologies might affect settlement
decisionmaking. The findings described here are based on the results of two experimental studies
in which 506
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 participants were asked to read a vignette describing a pedestrian-bicycle accident, to take on
the role of the injured party, to indicate whether or not they were likely to accept a settlement offer,
and to respond to a series of questions about the situation.
All participants reviewed the same basic scenario and evaluated the same settlement offer.
However, some participants evaluated a version of the scenario in which no apology was offered;
a second group evaluated a version of the scenario in which the other party offered a partial apology
that merely expressed sympathy for the potential claimant’s injuries (i.e., ‘I am so sorry that you
were hurt.’); and a third group of participants evaluated a version of the scenario in which the other
party offered a full apology that took responsibility for causing the injuries (i.e., ‘I am so sorry that
you were hurt. The accident was all my fault.’). Thus, the only difference between the three groups
was the nature of the apology offered.
Apologies Affect Settlement
In the first study, even though all participants were told that they had suffered the same
injuries and received the same offer of settlement, the nature of the apology offered influenced
recipients’ willingness to accept the offer. Receipt of a full, responsibility-accepting apology
increased the likelihood that the offer would be accepted. In contrast, a partial, sympathy-
expressing apology increased participants’ uncertainty about whether or not to accept the offer.
Specifically, when no apology was offered, 52 percent of respondents indicated that they
would definitely or probably accept the offer, while 43 percent would definitely or probably reject
the offer, and 5 percent were unsure. When a partial apology was offered, only 35 percent of
respondents were inclined to accept the offer, 25 percent were inclined to reject it and 40 percent
indicated that they were unsure. In contrast, when a full apology was offered, 73 percent of
respondents were inclined to accept the offer, with only 14 percent inclined to reject it and 14
percent unsure.
In addition, a full apology resulted in more positive ratings of numerous variables that are
thought to underlie settlement decision making than did either a partial apology or no apology.
Where there were differences in participants’ responses across conditions, the differences follow a
strikingly similar pattern: failing to offer an apology or offering a partial apology elicited equivalent
responses on these measures that were both different from the responses elicited when a full
apology was offered.
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Thus, as compared to offenders who offered either a partial apology or no apology, an

offender who offered a full apology was seen as:
• having offered a more sufficient apology
• experiencing more regret
• being more moral
• being more likely to be careful in the future
• believing that he or she was more responsible for the incident, and
• having behaved less badly.
 In addition, participants who received a full apology, as opposed to a partial apology or no
apology, expressed:
• greater sympathy for the offender
• less anger, and
• more willingness to forgive the offender.
Finally, participants who received a full apology, as opposed to a partial apology or no apology,
anticipated:
• less damage to the parties’ relationship, and
• that the settlement offer would better make up for their injuries.
These underlying judgments provided the mechanism by which apologies influenced
settlement decisions. Beyond their effect on decisions regarding a particular offer, such judgments
might also be expected to influence the willingness and ability of litigants to engage in settlement
negotiations more generally.
———————

POINTS FOR DISCUSSION

1.While “full” apologies have the most consistently positive effects on disputant perceptions, simple
expressions of sympathy can sometimes have beneficial effects as well. Statements that are not fully
apologetic may be difficult to interpret and signals about the sincerity with which they are offered may be
particularly important. See Jennifer K. Robbennolt, Apologies and Settlement Levers, 3. J. Empirical Studies 333
(2006). Think about how you might advise a client. Under what circumstances would you advise a client to
apologize? Express sympathy?

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2.Additional research has found that while attorneys understand the content of apologies in ways that
are similar to the ways in which disputants understand them, attorneys are more attuned to the strategic value
of apologies—that is, they are more likely to see the apology as an admission—than are disputants.
See Jennifer K. Robbennolt, Attorneys, Apologies, and Settlement Negotiation, 13 Harv. Negot. L. Rev. 349 (2008).
How might this different perspective influence the way in which an attorney might counsel a client? How
might it affect negotiation with the other side?

Negotiation Nugget

The publication Inc. identified three types of poorly done apologies: those that change the topic,
those that attempt to minimize the blame, and those that wait too long to appear sincere. See,
Cameron Albert-Deitch, The 3 Types of Bad Apologies that Dominated 2017 at https://www.inc.
com/cameron-albert-deitch/worst-apologies-2017.html.

3.Despite the benefits of an appropriate apology, many lawyers may be reluctant to counsel their clients
to take this step, even when warranted, out of concerns for liability. For a discussion, see Jonathan R.
Cohen, Advising Clients to Apologize, 72 S. Cal. L. Rev. 1009 (1999). Several states have enacted so-called
“benevolent gesture” legislation specifically designed to address this concern. For more on this, see Jeffrey
S. Helmreich, Does ‘Sorry’ Incriminate? Evidence, Harm and the Protection of Apology, Cornell J. L. Pub. Pol’y 567,
577–79 (2012); Jonathan R. Cohen, Legislating Apology: The Pros and Cons, 70 U. Cin. L. Rev. 819 (2002).

4.While apologies can be effective in negotiations and mediations, they have been found to be less
effective in trials. See Jeffrey J. Rachlinski, Chris Guthrie & Andrew J. Wistrich, Contrition in the Courtroom: Do
Apologies Affect Adjudication, 98 Cornell. L. Rev. 1189 (2013).

4.Hard Bargaining Tactics

Digging Deeper

President Trump’s persona as a hard bargainer from his days in the business world is a core part
of his political image. In which world, business or politics, is it more likely for a hard-bargaining
strategy to be successful? Why would that be?

Those who are extreme adversarial negotiators are known as hard bargainers. They see
negotiation as a game to be won and will engage in trickery and pressure tactics as a means to “win”
the negotiation. These negotiators typically take advantage of information asymmetries or time
constraints to exploit their
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negotiation counterpart’s inability to confirm or refute newly asserted information. In the
following excerpt, Professor Gary Goodpaster inventories several methods of adversarial tactics
that hard bargainers employ. Following that piece is an excerpt by Professor James F. Westbrook
explaining the approach offered in William Ury’s GETTING PAST NO: NEGOTIATING WITH
DIFFICULT PEOPLE (1991).

GARY GOODPASTER, A PRIMER ON COMPETITIVE BARGAINING

1996 J. Disp. Res. 325, 342–43, 349–52, 355–58, 362

The competitive negotiator adopts a risky strategy which involves the taking of firm, almost
extreme positions, making few and small concessions, and withholding information that may be
useful to the other party. The intention, and hoped-for effect, behind this strategy is to persuade
the other party that it must make concessions if it is to get agreement. In addition to this basic
strategy, competitive negotiators may also use various ploys or tactics aimed at pressuring,
unsettling, unbalancing or even misleading the other party to secure an agreement with its demands.
In an important sense, the competitive negotiator plays negotiation as an information game.
In this game, the object is to get as much information from the other party as possible while
disclosing as little information as possible. Alternatively, a competitive negotiator sometimes
provides the other party with misleading clues, bluffs, and ambiguous assertions with multiple
meanings, which are not actually false, but nevertheless mislead the other party into drawing
incorrect conclusions that are beneficial to the competitor.
The information the competitive negotiator seeks is the other party’s bottom line. How much
he will maximally give or minimally accept to make a deal. On the other hand, the competitive
negotiator wants to persuade the other side about the firmness of the negotiator’s own asserted
bottom line. The competitive negotiator works to convince the other party that it will settle only
at some point that is higher (or lower, as the case may be) than its actual and unrevealed bottom
line.
***
Knowing these ploys and tactics gives a negotiator a clear and deeper understanding of how
hard bargainers can operate throughout a negotiation on some issues or . . . when it comes time to
allocate shares in whatever value the negotiators may have created. More importantly, a large part
of negotiating well involves understanding how the other party is negotiating
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and responding appropriately. That can entail negotiating defensively, so as not to be taken,
or it may involve taking the initiative and trying to change the very character of the negotiation as
a process. . . . To use the game metaphor again, notwithstanding any lucky breaks, you usually can
play a game well only if you understand the game you are playing.
***
Escalation. Escalation involves raising demands, in some way, either before or during a
negotiation. Escalation before a negotiation can take the form of adding conditions before the
negotiation occurs. During a negotiation, escalating demands is another way of finding the limits
of what the other party is willing to give to affect an agreement. It is particularly effective when
used against conciliatory or naively cooperative negotiators.
A negotiator can also escalate demands as the first move in a negotiation. Suppose, for
example, two parties are meeting to discuss a proposed contract for the sale of real property for an
offered price of $650,000. When the negotiation begins, the seller could state that he was sorry,
but he must raise the asking price to $750,000 for a variety of reasons. The buyer, who was
originally prepared to try and whittle down the $650,000 figure, now must struggle to even reach
that figure. This tactic makes $650,000 look awfully good.
***
Other offer. To test the other party’s willingness to reach an agreement or to extract concessions,
a negotiator can state he has another offer or possibility and either specify what it is or deliberately
leave it vague. If true, the other offer gives a baseline to judge the superiority of any pending
agreement. If untrue, this is simply a tactic used to gain information or secure an advantage from
the other party. Direct lies in negotiations carry considerable risks, however, particularly when the
parties will have future dealings. When there is this kind of risk, those using this tactic may merely
hint or imply they have another offer. This vagueness allows them to claim a misunderstanding if
the other party discovers that another offer did not exist. Therefore, never accept vague assertions
of the existence of other offers. . . .

Digging Deeper

Is there an ethical problem with using the other offer strategy when in fact there is no other
offer?

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 False scarcity. Psychologically, people generally tend to respond to the scarcity of some item or
commodity by valuing it higher. In addition, psychological reactance theory holds that when
opportunities which were once open are now limited, e.g., items become scarcer or some authority
imposes restrictions on conduct, people react by wanting the opportunity more than when it was
more openly available. Negotiators sometimes . . . try to induce the other party into agreeing to
certain positions or terms by suggesting that the opportunities are somehow quite limited.
***
Misleading concession pattern. In win-lose or distributive negotiations, each side uses all available
information and attempts to figure out the other party’s bottom line in order to extract all possible
gains. Reading the concession pattern is one way to do that. In theory at least, a party will make
smaller and smaller concessions as the bargaining converges on his bottom line or reservation point.
Knowing that this is a common view, a negotiator can mislead the other party by planning a
concession pattern which converges at a point above or below his actual bottom line. While
“reading” the concession pattern, the other party may then extrapolate it to that point and
mistakenly conclude that the negotiator has reached his bottom line.
***
Threats, anger, and aggression. The use of threats, angry displays, and aggressive tactics in a
negotiation may evidence personality, frustration, or calculation. If the threat is real and the party
making it can carry it out, the threat is an exercise of power and poses to the recipient the adverse
consequences of a wrong choice. Negotiators, however, sometimes deliberately use such tactics
simply to intimidate, disturb, and confuse the other party. As the psychological assault can unnerve
and incline the victim to seek to mollify or conciliate the tantrum-thrower, negotiators using such
tactics are attempting to create and to play on vulnerability in order to induce appeasement and
exact concessions.

Note

Earlier in Chapter 3 we discussed emotion in negotiation, particularly anger.

Blaming or fault-finding. Perhaps most common in negotiations involving interpersonal issues,

blaming, or assigning fault is an aggressive tactic possibly having several aims. This tactic may
invoke conciliatory behavior as a result of induced guilty feelings or a sensed need to mollify. It
may distract by
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focusing the negotiation on a substantively irrelevant, but psychologically volatile or
conflictual relationship issue. “Winning” the relationship issue may result in concessions on the
substantive issue. Note, however, that a person can use this tactic even in arms-length transactions
where the parties do not have a psychologically invested relationship. . . .
Sudden change of mood. Sometimes, either during a single negotiation session or over the course
of several sessions, a negotiator will shift radically from a reasonable, friendly tone to an angry,
abusive, hostile tone or vice-versa. Such a [shift] may reflect the conscious use of psychological
tactics designed to confuse the other party, place it off balance, and create vulnerability. One who
is the target of another’s anger often assumes, many times mistakenly, that he has somehow caused
it. A natural human reaction then occurs to attempt to placate the angry person in order to smooth
the situation and save the relationship. . . .
***
Deadline. When both sides bargain competitively but also want a deal, most concessions will
likely occur toward the end of the negotiation when the deadline approaches. . . . . As a result,
neither party is likely to move much until it appears absolutely necessary. Deadlines under urgency,
especially externally imposed deadlines that preclude or seriously inhibit further negotiations bring
the parties to the very brink of the consequences of non-agreement. Examples include the
beginning of a trial, a company’s need for a certain product to meet its own manufacturing deadline,
or other contractual obligations. Indeed, it is as the deadline approaches that competitors are most
likely to attempt to outwait the other party so that the need to settle and related time pressures will
cause them to concede.

JAMES E. WESTBROOK, HOW TO NEGOTIATE WITH A JERK WITHOUT BEING ONE

1992 J. Disp. Resol. 443, 444–46

One of the most persistent questions about [the value-creation approach to negotiation] has
been whether the principled negotiation approach will work if the other side takes an adversarial
approach. Will the proponent of principled negotiation have to change to an adversarial approach?
If she doesn’t, will an impasse result? Will a negotiator using the adversarial approach take
advantage of a negotiator who tries to engage in principled negotiations? [William] Ury
wrote Getting Past No to respond to questions such as these. Of course, not everyone who takes an
adversarial approach to negotiation is a jerk. I used the word jerk in my title to get your
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attention and because I believe it sums up a fear by many persons who are called upon to
negotiate but who want to do so in a way that is consistent with their notion of appropriate conduct.
Approaches such as principled negotiation appeal to these persons, but they fear that they or their
client will be taken advantage of if they take such an approach. I suspect that one of their greatest
concerns is that they may have to act like a jerk in order to deal effectively with a bully, a liar, or
someone who is both astute and obnoxious. Getting Past No asserts that there is an effective
alternative to relying on techniques such as deception, stonewalling, or threatening.
AN OVERVIEW OF THE BREAKTHROUGH STRATEGY
Ury recommends what he calls a “breakthrough strategy” for overcoming barriers to
cooperation. He concedes that this strategy is counter-intuitive. You are called upon to do the
opposite of what you might naturally do. You go around your opponent’s resistance instead of
meeting it head on.
The first step in the breakthrough strategy is to “go to the balcony.” Instead of reacting to
your opponent’s tactics without thinking, you find a way to buy time. Use the time to recognize
your opponent’s tactics, figure out your interests, and identify your best alternative to a negotiated
agreement. Much of the discussion in the chapter on going to the balcony is about the danger of
making important decisions without adequate reflection and about ways of buying time for this
reflection.
 Second, you “step to their side” in order to create a more favorable negotiating climate. You
disarm your opponent before discussing substantive issues. Ury provides a variety of ways to do
this, such as asking for more information and reflecting back what you hear, acknowledging points
without agreeing with them, focusing on issues on which you agree, and speaking about yourself
rather than your opponent by describing the impact of the problem on yourself or your client. The
chapter includes an interesting discussion about the value of an apology.
Third, reframe whatever your opponent has said as an attempt to deal with the problem. Since
rejecting your opponent’s position will usually reinforce it, recast what she says in a way that directs
attention to satisfying interests. Ask her for advice, ask why she wants something, bring up what
you think her interests are and ask her to correct you if you are wrong, ask “what if” questions,
reframe your opponent’s position as one possible option among many, and ask why she thinks her
position is fair. Throughout, ask questions that cannot be answered by “no” by prefacing them
with “how,”
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“why,” and “who.” Not only do you reframe positions, but you reframe tactics. For example,
if your opponent lays down a rigid deadline, reinterpret it as a target to strive for. If this cannot be
done, you turn from negotiating substance to negotiating how the negotiations are to proceed. The
goal here is to change the game from positional to problem-solving negotiation.
Fourth, make it easy for your opponents to say yes by “building them a golden bridge.” The
golden bridge chapter contains a multitude of ideas and techniques for involving your opponent
in developing your proposal and for presenting it in a way that makes it easier for her to accept.
Guide rather than push her toward an agreement. Consider her interests, involve her in developing
your proposal, ask for and use her ideas where possible, and offer her choices. Ury suggests ways
of expanding the pie by looking for low-cost, high-benefit trades and using an “if-then” formula,
which deals with difficult issues by building flexible provisions into the agreement. Help her save
face by showing how circumstances have changed since she adopted her position, asking for a third
party recommendation, or urging reliance on a standard of fairness. Ury explains the dangers of
trying to go too fast and the value of breaking the negotiation into steps.
The fifth and final step is to “make it hard to say no.” This chapter contains a discussion of
what to do if your opponent still resists your proposals after you have gone through the first four
steps. Ury emphasizes persuasion rather than force or threats. He argues that force or threats often
backfire. He suggests that you educate your opponent about the costs of not agreeing, that you
warn rather than threaten, and that you demonstrate your best alternative to a negotiated agreement
(BATNA). Such a demonstration shows what you will do without your actually carrying it out. Ury
points out that, Power, like beauty, exists in the eyes of the beholder. If your BATNA is to have
its intended educational effect of bringing your opponent back to the table, he needs to be
impressed with its reality.
If you must use your BATNA, Ury recommends using as little power as possible, exhausting
alternatives before escalating, and using only legitimate means. He explains the value of employing
third parties where possible. As you try to persuade your opponent and as you resort to your
BATNA, you need to remind her regularly of the golden bridge available to her.
———————
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POINTS FOR DISCUSSION

1.Several hard-bargaining tactics are commonly associated with the value-claiming stages of negotiation.
For lists of hard bargaining tactics other than those provided by Professor Goodpaster, see HARRY
EDWARDS & JAMES J. WHITE, THE LAWYER AS NEGOTIATOR 112–21 (1977); ROBERT H. MNOOKIN, SCOTT
R. PEPPET & ANDREW TULUMELLO, BEYOND WINNING: NEGOTIATING TO CREATE VALUE IN DEALS AND
DISPUTES (2000); Michael Meltsner & Philip G. Schrag, Negotiating Tactics for Legal Services Lawyers, 7
Clearinghouse Rev. 259 (1973); D. James Greiner, Cassandra Wolos Pattanayak & Jonathan Hennessy, The
Limits of Unbundled Legal Assistance: A Randomized Study in a Massachusetts District Court and Prospects for the Future,
126 Harv. L. Rev. 901, 919 (2013).

2.Obviously, information asymmetries matter. If Negotiator A has access to key information and
Negotiator B does not have such access, Negotiator A will be in a stronger position and may even use that
strength to engage in hard bargaining on behalf of his client.

Agents benefit from what business-school types refer to as “information asymmetry,”

because they are in touch with multiple teams, who are, in turn, forbidden to communicate with
one another. Controlling the flow of that information—between the teams, the media, and the
players—is an essential component of the Boras methodology. “In terms of negotiation, this guy
is an absolute special-forces guy,” a competitor said of Boras. “The prison interrogations—he’s
one of those.” Boras is a skilled manipulator of the media, and shows the kind of patience, as
deadlines approach, that derives from great self-confidence. (This spring, he cut his negotiations
with the Arizona Diamondbacks over the pitcher Max Scherzer so close to the wire that the A.P.
reported, at 4:42 A.M. “Diamondbacks fail to sign No. 1 pick Scherzer,” only to reverse course
at 5:32 A.M., with a description of a four-year deal.)

Ben McGrath, The Extortionist, THE NEW YORKER, Oct. 29, 2007, at 56, 60.

3.Using information asymmetries for hard bargaining purposes can lead to impasse. Consider, for
example, the following analysis of strikes:

Note

In Chapter 2, we discussed studies finding that having a reputation as a distributive negotiator

can negatively impact negotiation outcomes.

In the spring of 1988, television and movie writers went out on strike. The strike, which
lasted for twenty-two weeks, was rhetorically bitter and economically destructive: it cost an
estimated half billion dollars in lost revenues and wages and sent network
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ratings down by nine per cent. But the walkout had only limited impact at the negotiating
table: when an agreement was finally reached, it looked very much like a deal that could have been
made five months earlier. The strike almost certainly cost both sides more than the sums they
had been fighting over.

Twenty years later, entertainment writers are on the picket lines once again. They may do
better this time, but history is against them. Walkouts may call to mind labor triumphs like the
Flint sitdown strike of 1936–37, which gained union recognition for the United Automobile
 Workers at G.M., but most don’t end that well—nor do they generally end as badly as the 1981
air-traffic controllers’ strike, in which everyone got fired. Instead, strikes often end tepidly, with
no major gains or rollbacks, and economists have found that, on average, strikes these days have
little, if any, impact on what workers get paid. (Paradoxically, unions raise worker wages, but
strikes generally don’t.) Given the negative economic consequences—lost paychecks for workers
and lost business for employers—the economically rational thing for both sides is usually to settle
before the walkout strikes. So why don’t they?

One obvious hurdle to a settlement is that neither side knows what the other side’s true
position is. In economists’ terms, strikes happen as a result of “asymmetric information”—when
one side knows more than the other about the real economics of the situation. Entertainment
writers, for instance, want a share of the revenue generated from their work in new media,
including programs streamed on the Internet. Producers insist that they need flexibility with
regard to new technologies and that it’s too early to know how much they can afford to pay for
streaming programs. This may be just a bluff, or it may contain some truth—it’s hard for the
writers to know the difference. Going on strike is one way to find out. If a company concedes
quickly, that’s a sign that it was just bluffing. If it’s willing to endure a long strike, that may be a
sign that it meant what it said. That’s why the longer a strike lasts, the less likely it is to produce
a big victory for either side: you’re willing to cut a deal after a long strike that you wouldn’t have
been willing to cut before in part because the strike has told you that the other side wasn’t just
bluffing.

James Surowiecki, Striking Out, THE NEW YORKER, Nov. 19, 2007, 42.

4.Not all strike situations have limited impacts on the parties’ respective interests. For example, in 2012,
the Chicago Teacher’s Union went on strike in reaction to then Chicago Mayor Rahm Emanuel’s demand
for longer school days without extra teacher compensation. In return, Mayor Emanuel widely known as a
political “tough guy” went to court asking for an injunction to stop the strike. After eight-days on strike and
under the threat of an injunction, the Chicago Teacher’s
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Union reached an agreement with the Mayor, who called it an “honest compromise.” The mayor got
longer school days he was seeking, and the union members received extra compensation for their longer
hours of work. Monica Davey, Teachers End Chicago Strike on Second Try, The NY Times, September 18, 2012.
Who was trying to assert power here—the union or the mayor? Why do you think the parties were unable
to reach an agreement before the mayor filed a lawsuit? Are hard-bargaining tactics assertions of power or
rights, or are they something else? When might these assertions be helpful and when might they be harmful?

5.Some of the risks associated with a negotiation approach that emphasizes claiming value include
alienating others, inefficient and unsustainable agreements, and reaching impasse when a deal was there for
the making. These risks are dramatically amplified with hard bargaining. William Ury’s GETTING PAST NO:
NEGOTIATING WITH DIFFICULT PEOPLE (1991) included a simple strategy for addressing hard bargainers—
reframe their tactics as a means to engage in the value creating approach to negotiation. Doing so had been
suggested in earlier works, but GETTING PAST NO made its mark by providing a clear method of how to do
so.

6.As you read Professor Westbrook’s description of Mr. Ury’s method, did you buy in or were you
skeptical? Why? Are there times when this approach would be more or less effective?
 7.What should a lawyer who favors the value-creation approach to negotiation do if his client asks him
to use more strong-armed tactics during the negotiation? What if the client asks him to back off from using
strong-armed tactics?

D.COMMITMENT
The final stage of the negotiation process is where the parties either commit to each other, in
the form of a written agreement, or commit to walk away from the potential agreement and to
their respective BATNAs. Reaching a deal is not the only important outcome of a negotiation. And
whether the negotiation ends in a deal is not the be-all and end-all. How the negotiation ends is
important as well. For example, if a negotiation ends in impasse are reputational concerns or
ongoing relationships important? If so, is there a way to exit graciously? Or, should a message be
sent to influence another negotiator’s future conduct? These are important questions for
consideration.
Nonetheless, we focus here on negotiations moving toward agreement. In the following
excerpt, Professor Charles B. Craver suggests that negotiators look to enhance the value of the
deal for both sides once they sense that a deal is looming.
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CHARLES B. CRAVER, SKILLS AND VALUES: LEGAL NEGOTIATING

46–47 (2d ed. 2012)

By the conclusion of the [Offer and Concession] Stage, both sides have become psychologically
committed to a joint resolution. Neither wants their prior bargaining efforts to culminate in failure.
Less proficient negotiators focus almost entirely on their own side’s desire for an agreement,
completely disregarding the settlement pressure on their opponents. [At this time], both sides want
an agreement. It is thus appropriate for both parties to expect joint movement toward final terms.
Negotiators should be careful not to make unreciprocated concessions, and to avoid excessive
position changes.
***
Once a tentative accord has been reached through the distributive process, the negotiators
should contemplate alternative trade-offs that might concurrently enhance the interests of both
parties. The bargainers may be mentally, and even physically, exhausted from their prior discussions,
but they should at least briefly explore alternative formulations that may prove to be mutually
advantageous. During [earlier stages], the parties often over- or under-state the actual value of
different items for strategic reasons. During [the offer and concession stage], they tend to be
cautious and opportunistic. Both sides are likely to employ power bargaining tactics designed to
achieve results favorable to their own circumstances. Because of the tension created by these
distributive techniques, * * * superior arrangements are rarely attained by this point in the
negotiation process. The participants are likely to have only achieved “acceptable” terms. If they
conclude their interaction at this point, they may leave a substantial amount of untapped joint
satisfaction on the bargaining table.
———————
 POINTS FOR DISCUSSION

1. Martin E. Latz describes commitment as a two-stage process—the initial close and the
final close. The initial close is when offers and concessions come in quick succession, and
the final close is when the deal is documented. In the initial close, he advises that appearing
patient is crucial, confirming knowledge of your counterpart’s interests (especially those
that might prevent an agreement), and creating an appropriate sense of urgency to
complete the negotiation. GAIN THE EDGE: NEGOTIATING TO GET WHAT YOU
WANT 204 (2004). The final close is where drafting comes in. He suggests quickly
confirming all oral commitments in
110
2. writing and getting a draft of a proposed deal to your counterpart promptly. Id. at 205.

2.While contract drafting is not a focus in this book, drafting the contract is a critical part of the
negotiation process. Not only does the drafting memorialize the deal going forward, the drafting process
may also bring to the fore issues yet to be contemplated and result in additional terms being negotiated.
Professor Tina L. Stark provides several important suggestions to keep in mind when drafting a contract:
accurately memorializing the deal, being clear and unambiguous, resolving problems pragmatically, and being
specific enough that the parties know their rights and obligations while also flexible enough to cope with
changed circumstances. Professor Stark describes the process of determining the contract concepts that best
reflect the terms of the deal as a “translation skill.” What do you think she means by that? Tina L.
Stark, DRAFTING CONTRACTS: HOW AND WHY LAWYERS DO WHAT THEY DO 4, 10 (2007).

Negotiation Nugget

Writing a clear and unambiguous agreement is more difficult than one would anticipate. One
thing to keep in mind is the audience. Will someone who was not at the negotiation table
understand what the obligations are for each party? To help in this regard use simple subject-
verb-object sentences and bullet points to make contracts easier to read.

3.In most cases, some continued bargaining during the final closing stage is not problematic. In certain
circumstances, however, it can be, particularly when negotiators engage in the negotiation tactic known as
nibbling. Nibbling occurs once everyone has agreed that they have a deal on a specific set of terms, but one
of the negotiators asks for a little bit of movement on one of the terms in hopes that the counterpart will
concede in order to save the deal. This tactic preys on the psychological commitment to the deal that
Professor Craver described above.

Digging Deeper
Is the “nibbling” technique described by Craver ethical? If so why, and if not why not?

4.Once the deal is drafted, the clients still must approve it. Sometimes this is easy, but at other times,
getting approval can be more difficult. In most cases clients are involved in the drafting process, seeing drafts
of the contract language and approving it as the drafting is going on. This process is more difficult when one
party is a governmental entity or other organization that requires board approval before a deal can be
officially accepted. Whether one is negotiating with a public or private
 111
entity, it is best to know at the outset who will have the authority to approve a final deal.

113

CHAPTER 4

PRINCIPALS AND AGENTS

Most people conduct the vast majority of their negotiations without help from lawyers or
other agents. See, e.g., ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS
SETTLE DISPUTES (1991). Even in disputes involving potentially legally actionable claims, people
seldom retain lawyers to represent them. One famous study is illustrative. Richard Miller and Austin
Sarat contacted individuals by telephone to inquire about potentially legally remediable injuries that
members of their households had suffered. Out of every 1,000 such instances, individuals hired
lawyers on only 100 occasions. See Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes:
Assessing the Adversary Culture, 15 Law & Soc’y Rev. 525, 534–46 (1980–81).
Despite the relative infrequency with which individuals hire lawyers, lawyers nonetheless
represent many clients in transactional negotiations and dispute settlements. Adding clients to the
equation introduces another variable into the negotiation calculus. The following excerpt discusses
the benefits of having an agent negotiate on behalf of a principal and the problems arising from
the principal-agent relationship that lawyers regularly experience.

ROBERT H. MNOOKIN, SCOTT R. PEPPET, ANDRE S. TULUMELLO, BEYOND WINNING:

NEGOTIATING TO CREATE VALUE IN DEALS AND DISPUTES
70–71, 74–76 (2000)

When a principal hires an agent to act on his behalf in negotiations across the table with
another party, he may expect—naively—that the agent will be motivated to serve the principal’s
interests. This is how principal-agent relations would work ideally. But in the real world, agents
always have interests of their own. As a result, the principal-agent relationship is rife with potential
conflicts that demand skillful management behind the table.
For example, a client and his lawyer may need to negotiate how the lawyer will be paid; how
the other side will be approached; what information will be sought from or disclosed to the other
side; at what point to accept the other side’s offer, and so on. If these issues are left
unacknowledged and unaddressed, they can adversely affect the negotiation across the table. For
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all of these reasons, effective negotiation requires a good understanding of the benefits and
risks of the agency relationships and how it can best be managed.
Agency Benefits
Why are agency relationships so pervasive in negotiation? Because an agent can provide
significant benefits to her principal. These benefits derive from four sources:
• Knowledge: An agent may have specialized knowledge—that the principal
lacks—about market conditions, formal or informal norms, or relevant
risks and opportunities. . . .
• Resources: An agent, by reason of his reputation and relationships, may be
able to provide access and opportunities that would otherwise be
unavailable. . . .
• Skills: An agent may be a better negotiator than the principal, whether
owing to experience, training, or natural ability. . . .
• Strategic Advantages: An agent may be able to use negotiation tactics on
behalf of the principal in a way that insulates the principal from their full
impact. The principal can remain the “good cop” while the agent plays the
bad cop. . . .
In many cases, the agent will be able to do things the principal could never do on his own, and the
possibility for both the principal and agent to benefit from the trade is clear.
***
The Problem: Agency Costs
Hiring an agent is not a simple matter. . . . [The principal-agent relationship] can create value.
At the same time, however, because the agent’s interests may not align with those of the principal,
a number of unique and intensely stubborn problems can arise. . . . Here, we introduce some of
the central issues.
The Sources of the Tension
Agency costs are not limited to the amount of money that a principal pays an agent as
compensation for doing the job. They also include the money and time the principal spends trying
to ensure that the agent does not exploit him but instead serves his interests as well. To understand
why agency costs exist, consider that principals and agents may differ in three general ways:
preferences, incentives, [and] information.
115

Different Preferences
First, the preferences, or interests, of an agent are rarely identical to those of the principal. [In
a sale of a house, a real estate agent’s] primary interest is in her own earnings. . . . [The seller’s]
primary economic interest is in the net sales price for his house. [The realtor] also has a strong
interest in her reputation and in securing future clients. She has an interest in maintaining good
relationships with other agents, banks, home inspectors, and insurance agencies. [She] is a repeat
player in this game while [the seller], particularly if he is leaving the community, is a one-shot player
who might be more than willing to sacrifice [the agent’s] reputation to get a better deal for himself.
Conversely, [the agent] may be reluctant to bargain hard for certain advantages. . . . because of her
desire to maintain a congenial relationship with the buyer’s agent, who may be a source of future
client referrals.
Different Incentives
Agency problems may also arise because the incentives of the principal and agent are
imperfectly aligned. The culprit is typically the agent’s fee structure, which may create perverse
incentives for the agent to act contrary to the principal’s interest. . . .
For example, [the seller] wants an arrangement that maximizes his expected net sale proceeds
after her fee. [The realtor], on the other hand, wants a fee structure that yields her the highest
expected return for her time spent. If they agree to a percentage fee, [the realtor] may prefer a quick
and easy sale at a lower price to a difficult sale at a higher price because with the former she will
get more return for hours spent working. . . .
Different Information
The information available to the principal and agent may differ. We are speaking here of kinds
of information that either side may have an incentive to keep to itself. [The realtor] may know that
market conditions are improving, for example, but she may be reluctant to share with [the seller]
for fear of inflating his expectations. Similarly, it may be difficult to know how much effort an
agent is actually putting in on the principal’s behalf. Because the principal cannot readily discover
this information, the agent might shirk her responsibilities and earn pay without expending effort.
———————

116
POINTS FOR DISCUSSION
1.Many lawyers find negotiations with their clients to be among their most difficult negotiations. Why
would that be?

2.How do lawyers and clients manage their differences with respect to incentives? In BEYOND
WINNING, Mnookin, Peppet, and Tulumello identify several different fee structures to do this: contingency
fee, fixed fee, hourly fee, mixed fee, and salary. What are the pros and cons of each with respect to how
attorneys negotiate on behalf of their clients?

Negotiation Nugget

Many people in the corporate world see their company’s legal department as the place where
good ideas and deals go to die. Thus, they may view in-house counsel as more of an adversary
than their negotiation counterparts. In-house counsel are wise to develop collaborative
relationships with their clientele to develop trust that can be drawn upon when necessary.

3.Understanding what the client wants and why the client wants it can be difficult. To facilitate
conversation with the client and to help in negotiation preparation, Professor Charles B. Craver suggests
dividing client goals into categories.

Most legal representatives formally or informally divide client goals into three categories: (1)
essential, (2) important, and (3) desirable. Essential items include terms clients must obtain if
agreements are to be successfully achieved. Important goals concern things clients really want to
acquire, but which they would be willing to exchange for essential or other important items.
Desirable needs involve items of secondary value which clients would be pleased to obtain, but
which they would exchange for “essential” or “important” terms.

CHARLES B. CRAVER, SKILLS & VALUES: LEGAL NEGOTIATING 20 (2d ed. 2012). Is a more adversarial
approach to negotiation implied in this advice? If so, how might a negotiator with a value-creating approach
reframe this suggestion?

4.In BEYOND WINNING, Mnookin, Peppet, and Tulumello describe the negotiation between a
principal and agent as the “behind the table negotiation” as compared to the “across the table” negotiation
with their negotiation counterpart. Should lawyers approach the behind the table negotiation differently than
any other negotiation? Which approach to negotiation best serves the lawyer-client relationship? Presuming
that lawyers should memorialize solutions to principal-agent problems in their engagement letters and
representation contracts, what form should these terms take?

117

5.When discussing client preferences with respect to negotiation goals and aspirations, outcomes, and
strategy, how should a lawyer discuss those differences with the client? What if the lawyer finds the client’s
expectations regarding outcome to be utterly unreasonable? Mnookin, Peppet, and Tulumello suggest the
following:

Labeling your client as unreasonable is not the best way to establish a process for talking
about legal risk. Where do these “unreasonable” expectations come from? Maybe your client is
legally sophisticated and simply reasons to a different conclusion from the same legal precedents
you’ve read. Maybe your client has factual information about the case that you don’t. Maybe the
client is simply more open to running risks that you would not. You should be open to learning
that your client might be operating on different basic premises than you are.

***

Sometimes clients set their expectations in terms of what they want, rather than in terms of
legal opportunities and risks. A client might say “I’ll only pay $1,200 a month child support and
not a penny more.” If you think this is unrealistic, you need to explain why.

Don’t ease in. If you beat around the bush, hedge, or qualify, your client may become
frustrated, apprehensive, or angry. It’s not hard to tell when someone is being evasive. It’s better
to put the bad news up front and empathize as your client reacts. . . . If the client remains
unpersuaded, give him some time. Sometimes a client needs time to let go of his initial aspirations,
even in the face of solid legal advice. Or you may need to raise it again. If the client persists, and
you’ve explained your reasons well, you might follow the client’s direction even though you
disagree. Alternatively, if the stakes are high enough, the client may find it helpful to get a second
opinion. Perhaps there’s someone else in the firm who could offer an assessment. Or there may
be a respected outsider who could be consulted.

ROBERT H. MNOOKIN, SCOTT R. PEPPET & ANDREW S. TULUMELLO, BEYOND WINNING: NEGOTIATING
TO CREATE VALUE IN DEALS AND DISPUTES 199 (2000).

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CHAPTER 5

ETHICAL AND LEGAL LIMITATIONS

This chapter surveys the boundaries of acceptable negotiation conduct. Specifically,
Subsection A explores the restraints the ethical rules for lawyers in the United States impose upon
lawyer-negotiators. In Subsection B, we explore the legal limitations imposed on all negotiators by
the law.

Digging Deeper

Are there other ethical standards such as general morality or fairness that may apply in the
bargaining situation?

A.ATTORNEY NEGOTIATION ETHICS

Negotiators frequently find themselves confronted with difficult questions they would rather
not answer. While most aspire to being truthful, being too truthful can be harmful to one’s leverage
and even lead to exploitation. Evasion may be more palatable than lying, but it can signal less than
full disclosure. And deception, no matter how it is described, may help negotiators reach their
short-term goals, but might have serious long-term consequences. To complicate matters further,
lawyers must follow the ethical rules regulating the legal profession. This complex scenario has the
potential to create a difficult balancing act when the ethical rules’ obligations appear to be in tension
with the obligations the lawyer faces as an advocate for her client.
All but one state have patterned their professional responsibility rules after the ABA’s Model
Rules of Professional Conduct. The preamble to the Model Rules provides that a lawyer is “a
member of the legal profession,” “a representative of clients, an officer of the legal system and a
public citizen having special responsibility for the quality of justice,” and that “[a]s negotiator, a
lawyer seeks a result advantageous to the
120
client but consistent with requirements of honest dealings with others.” MODEL RULES OF PROF’L
CONDUCT Preamble (2013).

Negotiation Nugget

California is the only state that has not based its legal ethics rules on the ABA Model Rules. But
Californians would still be wise to know these rules.

In the following two excerpts note how the rules of professional conduct address improper
attorney negotiation conduct. The first excerpt, by Professor James J. White, discusses the
difficulties of requiring attorneys to be fair in their negotiations. The second, by Professors Art
Hinshaw and Jess K. Alberts, discusses how the Model Rules of Professional Conduct approach
dissembling in negotiation.

JAMES J. WHITE, MACHIAVELLI AND THE BAR: ETHICAL LIMITATIONS ON LYING IN

NEGOTIATION
1980 Am. B. Found. Res. J. 926, 927–29, 931–35

[In this excerpt, Professor White is commenting on a proposed ethical rule that would have
required, in part, that lawyers “be fair in dealing with others.” This rule was not adopted into the
Model Rules of Professional Conduct.]
 On the one hand the negotiator must be fair and truthful; on the other he must mislead his
opponent. Like the poker player, a negotiator hopes that his opponent will overestimate the value
of his hand. Like the poker player, in a variety of ways he must facilitate his opponent’s inaccurate
assessment. The critical difference between those who are successful negotiators and those who
are not lies in this capacity both to mislead and not to be misled.
Some experienced negotiators will deny the accuracy of this assertion, but they will be wrong.
I submit that a careful examination of the behavior of even the most forthright, honest, and
trustworthy negotiators will show them actively engaged in misleading their opponents about their
true positions. That is true of both the plaintiff and the defendant in a lawsuit. It is true of both
labor and management in a collective bargaining agreement. It is true as well of both the buyer and
the seller in a wide variety of sales transactions. To conceal one’s true position, to mislead an
opponent about one’s true settling point, is the essence of negotiation.
Of course there are limits on acceptable deceptive behavior in negotiation, but there is the
paradox. How can one be “fair” but also mislead? Can we ask the negotiator to mislead, but fairly,
like the soldier who must kill, but humanely?
121

TRUTHTELLING IN GENERAL
The obligation to behave truthfully in negotiation is embodied in the requirement of Rule
4.2(a) that directs the lawyer to “be fair in dealing with other participants.”
***
The comment on fairness under Rule 4.2 makes explicit what is implicit in the rule itself by
the following sentence: “Fairness in negotiation implies that representations by or on behalf of one
party to the other party be truthful.” Standing alone that statement is too broad. Even the
Comments contemplate activities such as puffing which, in the broadest sense, are untruthful. It
seems quite unlikely that the drafters intend or can realistically hope to outlaw a variety of other
nontruthful behavior in negotiations.
***
FIVE CASES
[I]t is probably important to give more than the simple disclaimer about the impossibility of
defining the appropriate limits of puffing that the drafters have given in the current Comments.
To test these limits, consider five cases. Easiest is the question that arises when one misrepresents
his true opinion about the meaning of a case or a statute. Presumably such a misrepresentation is
accepted lawyer behavior both in and out of court and is not intended to be precluded by the
requirement that the lawyer be “truthful.” In writing his briefs, arguing his case, and attempting to
persuade the opposing party in negotiation, it is the lawyer’s right and probably his responsibility
to argue for plausible interpretations of cases and statutes which favor his client’s interest, even in
circumstances where privately he has advised his client that those are not his true interpretations
of the cases and statutes.
A second form of distortion that the Comments plainly envision as permissible is distortion
concerning the value of one’s case or of the other subject matter involved in the negotiation. Thus
the Comments make explicit reference to “puffery.” Presumably they are attempting to draw the
same line that one draws in commercial law between express warranties and “mere puffing”
under section 2–313 of the Uniform Commercial Code. While this line is not easy to draw, it
generally means that the seller of a product has the right to make general statements concerning
the value of his product without having the law treat those statements as warranties and without
having liability if they turn out to be inaccurate estimates of the value. As the statements descend
toward greater and greater particularity, as the ignorance
122
of the person receiving the statements increases, the courts are likely to find them to be not
puffing but express warranties. By the same token a lawyer could make assertions about his case
or about the subject matter of his negotiation in general terms, and if those proved to be inaccurate,
they would not be a violation of the ethical standards. Presumably such statements are not
violations of the ethical standards even when they conflict with the lawyer’s dispassionate analysis
of the value of his case.
A third case is related to puffing but different from it. This is the use of the so-called false
demand. It is a standard negotiating technique in collective bargaining negotiation and in some
other multiple-issue negotiations for one side to include a series of demands about which it cares
little or not at all. The purpose of including these demands is to increase one’s supply of negotiating
currency. One hopes to convince the other party that one or more of these false demands is
important and thus successfully to trade it for some significant concession. The assertion of and
argument for a false demand involves the same kind of distortion that is involved in puffing or in
arguing the merits of cases or statutes that are not really controlling. The proponent of a false
demand implicitly or explicitly states his interest in the demand and his estimation of it. Such
behavior is untruthful in the broadest sense; yet at least in collective bargaining negotiation its use
is a standard part of the process and is not thought to be inappropriate by any experienced
bargainer.
Two final examples may be more troublesome. The first involves the response of a lawyer to
a question from the other side. Assume that the defendant has instructed his lawyer to accept any
settlement offer under $100,000. Having received that instruction, how does the defendant’s lawyer
respond to the plaintiff’s question, “I think $90,000 will settle this case. Will your client give
$90,000?” Do you see the dilemma that question poses for the defense lawyer? It calls for
information that would not have to be disclosed. A truthful answer to it concludes the negotiation
and dashes any possibility of negotiating a lower settlement even in circumstances in which the
plaintiff might be willing to accept half of $90,000. Even a moment’s hesitation in response to the
question may be a nonverbal communication to a clever plaintiff’s lawyer that the defendant has
given such authority. Yet a negative response is a lie.
123

It is no answer that a clever lawyer will answer all such questions about authority by refusing
to answer them, nor is it an answer that some lawyers will be clever enough to tell their clients not
to grant them authority to accept a given sum until the final stages in negotiation. Most of us are
not that careful or that clever. Few will routinely refuse to answer such questions in cases in which
the client has granted a much lower limit than that discussed by the other party, for in that case an
honest answer about the absence of authority is a quick and effective method of changing the
opponent’s settling point, and it is one that few of us will forego when our authority is far below
that requested by the other party. Thus despite the fact that a clever negotiator can avoid having
to lie or to reveal his settling point, many lawyers, perhaps most, will sometime be forced by such
a question either to lie or to reveal that they have been granted such authority by saying so or by
their silence in response to a direct question. Is it fair to lie in such a case?

Negotiation Nugget

One should not disclose to a counterpart the authority a client has given with respect to a
negotiation. Instead, the lawyer should restate the previous offer/demand by saying something
like “my client is asking for . . .,” redirect the conversation, ignore the question, or politely say
something like “you know I can’t disclose that.”

Before one examines the possible justifications for a lie in that circumstance, consider a final
example recently suggested to me by a lawyer in practice. There the lawyer represented three
persons who had been charged with shoplifting. Having satisfied himself that there was no
significant conflict of interest, the defense lawyer told the prosecutor that two of the three would
plead guilty only if the case was dismissed against the third. Previously those two had told the
defense counsel that they would plead guilty irrespective of what the third did, and the third had
said that he wished to go to trial unless the charges were dropped. Thus the defense lawyer lied to
the prosecutor by stating that the two would plead only if the third were allowed to go free. Can
the lie be justified in this case?
How does one distinguish the cases where truthfulness is not required and those where it is
required? Why do the first three cases seem easy? I suggest they are easy cases because the rules of
the game are explicit and well developed in those areas. Everyone expects a lawyer to distort the
value of his own case, of his own facts and arguments, and to deprecate those of his
124
opponent. No one is surprised by that, and the system accepts and expects that behavior. To
a lesser extent the same is true of the false demand procedure in labor-management negotiations
where the ploy is sufficiently widely used to be explicitly identified in the literature. A layman might
say that this behavior falls within the ambit of “exaggeration,” a form of behavior that while not
necessarily respected is not regarded as morally reprehensible in our society.
The last two cases are more difficult. In one the lawyer lies about his authority; in the other
he lies about the intention of his clients. It would be more difficult to justify the lies in those cases
by arguing that the rules of the game explicitly permit that sort of behavior. Some might say that
the rules of the game provide for such distortion, but I suspect that many lawyers would say that
such lies are out of bounds and are not part of the rules of the game. Can the lie about authority
be justified on the ground that the question itself was improper? Put another way, if I have a right
to keep certain information to myself, and if any behavior but a lie will reveal that information to
the other side, am I justified in lying? I think not. Particularly in the case in which there are other
avenues open to the respondent, should we not ask him to take those avenues? That is, the careful
negotiator here can turn aside all such questions and by doing so avoid any inference from his
failure to answer such questions.
What makes the last case a close one? Conceivably it is the idea that one accused by the state
is entitled to greater leeway in making his case. Possibly one can argue that there is no injury to the
state when such a person, particularly an innocent person, goes free. Is it conceivable that the act
can be justified on the ground that it is part of the game in this context, that prosecutors as well as
defense lawyers routinely misstate what they, their witnesses, and their clients can and will do?
None of these arguments seems persuasive. Justice is not served by freeing a guilty person. The
system does not necessarily achieve better results by trading two guilty pleas for a dismissal.
Perhaps its justification has its roots in the same idea that formerly held that a misrepresentation
of one’s state of mind was not actionable for it was not a misrepresentation of fact.
In a sense rules governing these cases may simply arise from a recognition by the law of its
limited power to shape human behavior. By tolerating exaggeration and puffing in the sales
transaction, by refusing to make misstatement of one’s intention actionable, the law may simply
have recognized the bounds of its control over human behavior. Having said that, one is still left
with the question, Are the lies permissible in the last two cases?
125
My general conclusion is that they are not, but I am not nearly as comfortable with that
conclusion as I am with the conclusion about the first three cases.
Taken together, the five foregoing cases show me that we do not and cannot intend that a
negotiator be “truthful” in the broadest sense of that term. At the minimum we allow him some
deviation from truthfulness in asserting his true opinion about cases, statutes, or the value of the
subject of the negotiation in other respects. In addition some of us are likely to allow him to lie in
response to certain questions that are regarded as out of bounds, and possibly to lie in
circumstances where his interest is great and the injury seems small. It would be unfortunate,
therefore, for the rule that requires “fairness” to be interpreted to require that a negotiator be
truthful in every respect and in all of his dealings. It should be read to allow at least those kinds of
untruthfulness that are implicitly and explicitly recognized as acceptable in his forum, a forum
defined both by the subject matter and by the participants.

ART HINSHAW & JESS K. ALBERTS, DOING THE RIGHT THING: AN EMPIRICAL STUDY OF
ATTORNEY NEGOTIATION ETHICS
16 Harv. Neg. L. Rev. 95, 102–106 (2011)

The Model Rules’ drafters assumed that lawyers would act in the role of a partisan
representative on behalf of their clients against the interests of third parties. To keep their partisan
ethos from crossing into unlawful territory, Rule 4.1, “Truthfulness in Statements to Others,”
imposes limits on the deception lawyers can use. Rule 4.1 provides:
In the course of representing a client, a lawyer shall not knowingly:
(a)Make a false statement of material fact or law to a third person; or
(b)Fail to disclose a material fact to a third person when disclosure is necessary to avoid
assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by
Rule 1.6.
A simple proposition lies at the Rule’s core: lawyers may act as partisans for their clients, but they
must draw the line at lying. Lying includes overt lies, active misrepresentations, as well as
misrepresentations by omission. Underlying the Rule is one of the foundational propositions in the
Model Rules—that attorneys should not participate in a client’s criminal or fraudulent conduct.
Although Rule 4.1’s text appears straightforward, the Rule’s application is not.
126

a.Rule 4.1(a)
The first issue arises because Rule 4.1(a)’s prohibition applies only to “material” facts or law.
However, the Model Rules fail to define the term “material,” instead explaining that what
constitutes a material fact “depends on the circumstances.” Generally, a statement of fact is
considered material if it is significant or essential to the negotiation, but Comment 2 explains:
Under generally accepted conventions in negotiation, certain types of statements
ordinarily are not taken as statements of material fact.
It then provides examples of statements that ordinarily fall into this immaterial fact category,
including estimates of price or value and a party’s intentions as to an acceptable settlement of a
claim, arguably the two most material matters during bargaining interactions. The Comment’s
phrasing also suggests that this is not an exclusive list, and many authorities have surmised that
other types of statements must not be material facts because they fall into the “generally accepted
negotiation conventions” category. However, it is unclear what those other statements might be.
Defining the Rule’s determinative principle by explaining what it is not leads to difficulties in
interpretation. When grappling with this problem, only one court has defined the term “material
fact” using verbiage other than what appears in the Rule’s Comments, and it did so in positive
terms:
A fact is material to a negotiation if it reasonably may be viewed as important to a fair
understanding of what is being given up and, in return, gained by the [deal].32
This definition underscores the breadth of the term “material fact,” which explains why Comment
2 narrows it. The two keys to determining whether a fact is material in the context of Rule 4.1 are:
(a) whether the fact has a reasonable effect on one party’s understanding of what is being negotiated,
and (b) whether the statement is an estimate of price or value on the subject of a transaction or a
party’s intentions as to an acceptable settlement of a claim.
Rule 4.1(a) forbids false statements of material law as well as false statements of material fact.
The Rule’s Comments do not address what constitutes “material law,” leaving lawyers with a
dictionary definition: law that is either significant or essential to the negotiation. Rule 4.1’s
prohibition
127
regarding material law is most often germane when a statement is addressed to a non-lawyer,
but it applies to opposing counsel and judges as well.
Thus, when speaking to others about material issues, Rule 4.1(a) simply requires lawyers to
speak the truth as they understand it without engaging in any misrepresentations. However, a
lawyer is not prohibited from making deliberate misrepresentations about non-material facts or law
to anyone.
b.Rule 4.1(b)
 Generally, lawyers have no duty voluntarily to inform an opposing party of relevant facts
when negotiating. Under the auspices of Rule 4.1(b), however, a duty to disclose material facts or
law arises only if doing so avoids assisting in a client’s criminal conduct or fraud. In other words,
the lawyer’s silence may cause the lawyer to be complicit in a fraudulent misrepresentation by
omission. In instances where nondisclosure constitutes a fraudulent misrepresentation, such as
when the lawyer finds that her work has unwittingly been used to further an ongoing fraud, the
lawyer has a duty to correct the misapprehension.
Yet the Rule provides that disclosure is proper only if it does not violate the duty of
maintaining client confidences stated in Rule 1.6. This would appear to vitiate the duty of disclosure,
allowing lawyers to participate in a client’s crime or fraud. However, reading Rule 4.1(b) with Rule
1.6 and with the values behind the Model Rules negates such a conclusion. Rule 1.6 contains several
discretionary exceptions permitting disclosure with respect to criminal or fraudulent conduct in
order to prevent, mitigate, or rectify injuries due to conduct for which the lawyer’s services have
been unwittingly used.42 But these permissive reporting requirements become mandatory “when
disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.” Similarly, the
general requirements of Rule 1.6 have always been subject to Rule 1.2(d)’s prohibition against
knowingly participating in a client’s criminal or fraudulent conduct. Thus, the reference to client
confidential information in Rule 4.1(b) does not modify the duty to disclose material facts when
doing so would avoid assisting the client’s criminal conduct or fraud.
If a client asks an attorney to engage in criminal or fraudulent acts, the attorney and client
should first discuss the consequences of the client’s request and, if the client refuses to reconsider
the action, the lawyer should withdraw from the representation. If the lawyer withdraws, she may
still be
128
required to disaffirm any fraudulent statement with which she might be deemed to be
associated by reason of the prior representation.
Rule 4.1’s regulation on attorney negotiation behavior is modest notwithstanding its
prohibition of fraudulent conduct and assisting in a client’s fraudulent conduct. The Rule allows
attorneys to be deceitful about opinions and non-material facts and law, which allows for puffing
and bluffing. Furthermore, technical violations of Rule 4.1 where no one is harmed are unlikely to
be the subject of disciplinary proceedings or court sanctions. In practice, Rule 4.1 does little other
than proscribe fraudulent misrepresentations in negotiation.
———————

POINTS FOR DISCUSSION

1.Is Professor White correct that a negotiator “must be fair and truthful” on the one hand but that he
“must mislead his opponent” on the other? In each of the five cases Professor White discusses, do you agree
with his conclusions about whether it is permissible to mislead your counterpart?

2.In their excerpted article, Professors Hinshaw and Alberts presented the results of a study in which
they gave lawyers an ethical dilemma involving the continuation of a client’s misrepresentation, the truth of
which, if known, would have severely compromised what would otherwise have been a substantial claim.
Here’s what they found:
 The aggregated results of the survey, which report the findings from 734 respondents from
the Phoenix, Arizona and St. Louis, Missouri metropolitan areas, found that in response to the
client’s initial request to refrain from [providing the true information], 62 percent of the
respondents said that they would not agree to such a request, while 19 percent said they would
agree to the client’s request. The remaining 19 percent of the respondents indicated they were
not sure how they would respond if placed in this situation. The responses to the client’s second
request—to disclose [the true information] only if directly asked [about it]—revealed similar
results. Sixty-four percent of these respondents (592 respondents) indicated they would refuse
the request, 13 percent indicated that they would agree, and 23 percent replied that they were not
sure what they would do.

***

When combining the results of the client’s two requests, we found that 30 percent of the
respondents agreed to engage in the fraudulent settlement negotiation scheme in violation of Rule
4.1, 50 percent of the
129
respondents refused both client requests, thereby following the proper course of action, and
the remaining 20 percent responded that they were unsure how to respond to one or both
requests. The study also revealed that potential reasons for this problem include considerable
confusion among some attorneys regarding the elements of Rule 4.1. That is, just more than a
quarter of the respondents failed to recognize that refraining from disclosing the [true
information] constituted a misrepresentation, and many were unable to properly identify various
material facts in the hypothetical negotiation. The study also revealed that many attorneys believe
that confidentiality concerns, such as client confidentiality and the attorney-client privilege, trump
the Model Rule’s dictates to refrain from assisting clients in fraudulent conduct.

Art Hinshaw & Jess K. Alberts, Gender and Attorney Negotiation Ethics, 39 Wash. U. J.L. & Pol’y 145, 155–157
(2012).

3.A negotiator might mislead a counterpart by making untrue statements (lying by commission), by failing
to disclose pertinent information (lying by omission), or by making true statements in order to create a false
impression (paltering). As an empirical matter, lying by commission tends to be perceived as more
objectionable than lying by omission, and people tend to be more willing to lie by omission than by
commission. Research has also found that paltering is more likely than lying by commission and is seen by
the negotiator making the statement as less unethical than lying by commission. But paltering is viewed by
negotiation counterparts as equally as unethical as lying by commission and results in damage to the
negotiator’s reputation if the deception is discovered. Todd Rogers, Richard Zeckhauser, Francesca Gino,
Michael I. Norton, & Maurice E. Schweitzer, Artful Paltering: The Risks and Rewards of Using Truthful Statements
to Mislead Others, 112 J. Personality & Soc. Psychol. 456 (2017).

4.If price or value are “ordinarily not taken as statements of fact,” is a lawyer’s authority from a client
a material fact or is it viewed like the price or value of an item? An ABA ethics opinion on the issue concludes
that in certain circumstances it can be a material fact. Specifically, Opinion 06–439 states:

[C]are must be taken by the lawyer to ensure that communications regarding the client’s
position, which otherwise would not be considered statements “of fact,” are not conveyed in
language that converts them, even inadvertently, into false factual representations. . . . [I]t would
 not be permissible for [a] lawyer to state that [a client’s] Board of Directors has formally
disapproved any settlement in excess of $50, when authority had in fact been granted to settle for
a higher sum.

ABA Comm’n on Ethics & Prof’l Responsibility, Formal Op. 06–439 (2006).

130

In the context of Rule 4.1, price and value are treated as if they are questions of opinion—subjective
issues influenced by a host of factors. But once a statement becomes verifiable and objective, like the Board
of Director’s vote, it is objectively true or false and no longer a matter of opinion. Do you think it is a good
idea for a lawyer to disclose the negotiation authority a client has given him? If so, how should a lawyer best
do that? Are there any other rules that impact whether a lawyer should disclose that information?

Digging Deeper

The Model Rules of Professional Responsibility discuss ethics as more of a limbo type process—
how low can you go and still be ok? Should ethical standards be prohibitions or more aspirational
in character, especially with regard to truthfulness?

5.Two other Model Rules also directly impact the negotiation process. The first, Rule 3.3 “Candor to
the Tribunal,” states that attorneys shall not knowingly “make false statements of fact or law” to a tribunal,
which includes judges, arbitrators, and other hearing panels. The rule applies to any statement of fact, not
just statements of material fact. Thus, lawyers need to be on their guard not to violate this rule when in
judicial settlement conferences, particularly when describing the various components of offers and
counteroffers. See In re Fee, 898 P.2d 975 (Ariz. 1995) (finding a violation of Rule 3.3 when lawyers failed to
correct a settlement conference judge’s misunderstanding of their fee agreement with their client).

The second rule in this category is Rule 8.4, simply titled “Misconduct,” which applies in all lawyering
contexts. As it applies to negotiation, Rule 8.4(c) specifically defines “dishonesty, fraud, deceit, or
misrepresentation” as misconduct. This puts the rule in conflict with Rule 4.1’s legitimization of some
deceptive negotiation behaviors, but rules of statutory interpretation give Rule 4.1’s specific negotiation
analysis precedence over Rule 8.4(c)’s general prohibitions. Nevertheless, Rule 8.4(c)’s straightforward
exhortation is more often invoked by bar disciplinary authorities, in part because it augments claims of Rule
4.1 violations.

6.Professor Gerald Wetlaufer has argued against Professor White’s view that there are permissible and
impermissible lies. Consider the following excerpt:

For the purposes of this Article, “lying” will be defined to include all means by which one
might attempt to create in some audience a belief at variance with one’s own. These means include
intentional communicative acts, concealments, and omissions. . . .

It has been suggested that this definition of lying is too broad and that one should, at this
early stage of the inquiry, acknowledge a distinction between lying and other lesser deceptions.
My reasons for not doing so are three. First, it is perfectly appropriate, at least in American
131
usage, to define lying as I have done. Second, as is made clear in the new OXFORD ENGLISH
DICTIONARY, there is a strong measure of euphemism in our habit of reserving “lying” only for
 the most serious offenses. This tendency toward euphemism can bring considerable confusion to
the inquiry at hand. Third, the desire to distinguish lying from lesser deception rests on the
assumption that there is a moral or ethical distinction between these two categories of conduct.

Gerald Wetlaufer, The Ethics of Lying in Negotiations, 75 Iowa L. Rev. 1219, 1223 (1990). Who has the better
point of view, Professor Wetlaufer or Professor White? Why?

7.The disagreement between Professors Wetlaufer and White suggests that social norms, the rules of
acceptable behavior among individuals in groups or in society at large, are very important in determining
what is considered appropriate negotiation behavior. For example, there is a general social norm that lying
is wrong and bad, but in the negotiation setting there is a norm allowing for some deception and deceit. This
norm, however, is tempered by other factors, such as an individual’s comfort level with deceptive behavior
and the identity of the recipient of such behavior. Taking these factors into account, Professor G. Richard
Shell has identified three sets of norms when it comes to negotiation ethics and identified them as: the Idealist,
the Pragmatist, and the Poker Player.

The Idealist views negotiation like any other social setting where people must be held responsible for
their actions. Thus, the rules about taking advantage of others apply in the negotiation context, and deception
is only acceptable when protecting others from harm or hurt feelings or other similar special situations.
Pragmatists take a cost-benefit approach to deception and other questionable tactics and note that the long-
term costs associated with them usually outweigh the short-term gains. They also recognize that one’s
reputation is an important asset, worthy of protecting. Pragmatists may be deceptive with respect to
justifications and rationales for offers and counteroffers, which are typically less important to transactions
than the substantive matters related to the transaction. Poker Players view deception as an essential element
of negotiation, and cunning deceit is to be expected. In this view, an effective negotiator must have a robust
distrust of one’s counterpart and must engage in hard bargaining tactics when necessary. If a Poker Player
has good leverage, the basis for that leverage will be disclosed. And if in a position of lesser or no leverage,
Poker Players view bluffing to create an impression of good leverage as critical (much like in a game of
poker). G. RICHARD SHELL, BARGAINING FOR ADVANTAGE: NEGOTIATION STRATEGIES FOR
REASONABLE PEOPLE 210–214 (2d ed. 2006).

8.Professor Peter Reilly recommends the following self-help measures to combat a negotiation
counterpart’s deceit: conducting a thorough background check on the other parties to the negotiation,
networking for potential negotiation counterparts, creating rapport, demanding the use of objective
standards while avoiding being hamstrung by them, strategically limiting information revelation,
132
recognizing and thwarting tactics of evasion, establishing long-term relationships and watching for
signs of deception, and using “come clean” questions strategically. See Peter Reilly, Was Machiavelli Right?
Lying in Negotiation and the Art of Defensive Self-Help, 24 Ohio St. J. on Disp. Resol. 481, 525–532 (2010).

B.THE LAW OF BARGAINING

In the following case, we examine in some detail allegations of a lawyer’s misrepresentation
during litigation-related negotiation. As you read the Minnesota Supreme Court’s opinion here,
consider how you would have responded to the question asked.

HOYT PROPERTIES, INC. V. PRODUCTION RESOURCE GROUP, L.L.C.

736 N.W.2d 313 (Minn. 2007)
 PAGE, JUSTICE.
[In 2001, Hoyt Properties engaged in a multi-million dollar commercial lease with Entolo.
When Entolo defaulted, Hoyt filed an unlawful detainer action, and on the day of the eviction
hearing Hoyt and Entolo reached a settlement that included a liability release for Entolo’s parent
corporation, PRG. Hoyt alleges it agreed to the release because of a misrepresentation by PRG’s
attorneys on the day of the eviction hearing.
According to Hoyt, upon learning that PRG was concerned about being sued after the fact,
Hoyt asked, “I don’t know of any reason how we could pierce the veil, do you?” Hoyt alleges that
PRG’s attorney responded, “There isn’t anything. PRG and Entolo are totally separate.” However,
Hoyt later learned of a lawsuit brought by a third party against Entolo that alleged breach of
contract by Entolo but sought to hold its parent company, PRG, liable by piercing the corporate
veil. The complaint alleged, among other things, that Entolo failed to observe corporate formalities,
was operated by PRG as a division rather than a separate corporation, and was undercapitalized by
PRG.
Hoyt filed this action to rescind the settlement agreement and to pierce the corporate veil to
hold PRG liable for Entolo’s breach of the lease. Hoyt alleges the PRG representations were false
and that the attorney either knew or should have known that the representations were false.]
***
When reviewing a grant of summary judgment, we review the record to determine: “(1)
whether there are any genuine issues of material fact for trial; and (2) whether the trial court erred
in its application of the law.” We review
133
the evidence in the light most favorable to the nonmoving party, in this case, Hoyt.
To make out a claim for fraudulent misrepresentation, the plaintiff must establish that:
(1) there was a false representation by a party of a past or existing material fact susceptible
of knowledge; (2) made with knowledge of the falsity of the representation or made as
of the party’s own knowledge without knowing whether it was true or false; (3) with the
intention to induce another to act in reliance thereon; (4) that the representation caused
the other party to act in reliance thereon; and (5) that the party suffer[ed] pecuniary
damage as a result of the reliance.
Appellants argue that the statements at issue do not amount to statements of past or present
material fact as required under the first prong of our fraudulent misrepresentation standard.
As the court of appeals noted, abstract statements of law or pure legal opinions are not
actionable; however, a mixed statement of law and fact may be actionable “if it amounts to an
implied assertion that facts exist that justify the conclusion of law which is expressed” and the
other party would ordinarily have no knowledge of the facts. . . . Thus, according to the
Restatement, one who says, “ ‘I think that my title to this land is good, but do not take my word
for it; consult your own lawyer,’ ” cannot be reasonably understood as asserting any fact with
respect to the title. However, a legal statement in the form of an expression of opinion may still be
actionable if it carries “with it by implication the assertion that the facts known to the maker are
not incompatible with his opinion or that he does know facts that justify him in forming it.” For
example, a statement that one mortgage has priority over another may imply an assertion that one
was made before the other; and a statement that a corporation has the legal right to do business in
a state may carry with it an assurance that it has as a matter of fact taken all of the steps necessary
to be duly qualified.
In order to evaluate the statement at issue in this case, it is helpful to review the standard
courts use to determine whether to pierce the corporate veil. A court may pierce the corporate veil
to hold a shareholder liable for the debts of the corporation when the shareholder is the alter ego
of the corporation. When using the alter ego theory to pierce the corporate veil, courts look to the
“reality and not form, with how the corporation operated and the individual defendant’s
relationship to that operation.” Factors
134
relevant to that inquiry include insufficient capitalization for purposes of corporate
undertaking, failure to observe corporate formalities, nonpayment of dividends, insolvency of
debtor corporation at time of transaction in question, siphoning of funds by dominant shareholder,
nonfunctioning of other officers and directors, absence of corporate records, and existence of
corporation as merely facade for individual dealings.
Appellants assert that the representations PRG’s attorney allegedly made were statements of
the attorney’s legal opinion only and thus were not actionable. Appellants argue that Steve Hoyt’s
question, “I don’t know of any reason how we could pierce the veil, do you?,” solicited the view
of PRG’s attorney regarding a legal claim, to which PRG’s attorney responded with the legal
opinion “There isn’t anything.” As to the second part of the alleged representation, “PRG and
Entolo are totally separate,” appellants argue that this was also a legal opinion, and that the word
“separate” is a legal term of art that “does not describe a particular factual predicate in a piercing-
the-veil case, but rather, a general legal conclusion that piercing is not warranted.” Hoyt asserts
that the representation that “There isn’t anything” “implied that PRG’s and Entolo’s business
operations justified [the attorney’s] conclusion that there was not ‘anything’ to a good-faith piercing
claim” and that the representation that “PRG and Entolo are totally separate” was a direct factual
statement bolstering the assertion that there were no facts supporting a veil-piercing claim. Hoyt
further asserts that Steve Hoyt had no knowledge of the facts underlying PRG’s corporate
relationship with Haas and Entolo.
. . . When viewed in the light most favorable to Hoyt, as is required under the summary
judgment standard, the representation “There isn’t anything” is a representation that no facts exist
that would support a piercing claim against PRG—for example, no facts indicating that Entolo did
not maintain corporate formalities. Even if we assume, as appellants argue, that the alleged
statement made by PRG’s attorney was an expression of his legal opinion, that representation
implies that the attorney was aware of facts supporting that opinion, namely, that there were no
facts to support a claim to pierce the corporate veil. Because the representation was not an
expression of pure legal opinion (for example, “I do not think someone could pierce the veil but I
am not sure”), but rather a statement implying that facts existed that supported a legal opinion, we
conclude that the representation is actionable.
We conclude that the second alleged representation, “PRG and Entolo are totally separate,”
is also actionable. Again viewed in the light most favorable to Hoyt, the second representation
constitutes a direct factual
 135
assertion that the relationship between PRG and Entolo is such that no facts exist that would
allow the corporate veil to be pierced; for example, that no facts existed that would demonstrate
that Entolo was a façade for PRG’s own dealings. As such, it is the kind of representation that we
have traditionally held to be actionable.
***
The record is sufficient for us to conclude that there are also genuine issues of material fact
for trial as to whether PRG’s attorney made the representations at issue without knowing whether
they were true or false. . . . In his deposition, PRG’s attorney also admitted that when he made the
alleged representations at issue he had not yet formed an opinion, one way or the other, about the
facts alleged in the complaint. Given these admissions, a finder of fact could conclude that when
PRG’s attorney responded to Steve Hoyt’s question he did not know whether his representations
were true. As such, there is a genuine issue of material fact for trial as to whether he made the
representations “without knowing whether [they were] true or false.”
III.
Finally, we address the district court’s finding that “Hoyt’s reliance on opposing counsel’s
remarks was unreasonable as a matter of law.” . . . To prevail on a claim of fraudulent
misrepresentation, the complaining party must set forth evidence demonstrating both actual and
reasonable reliance. . . . To establish actual reliance, Hoyt offered Steve Hoyt’s deposition
testimony that he agreed to release PRG from liability because he relied on the representations
PRG’s attorney made regarding piercing the corporate veil. On this record, Steve Hoyt’s testimony
is sufficient to defeat summary judgment on the question of actual reliance. . . .
Because we hold that Hoyt established genuine issues of material fact for trial as to the
required elements of a fraudulent misrepresentation claim, we affirm the court of appeals’ decision
and remand to the district court for further proceedings.
Affirmed.
ANDERSON, PAUL H., JUSTICE (dissenting).
I respectfully dissent.
***
The first element of a claim for fraudulent misrepresentation is only met if the false factual
representation by the party involves a “fact susceptible of
136
knowledge.” When this standard is applied to the facts in this case, it is difficult to see how
PRG’s attorney’s representations can be actionable. First, in order for PRG’s attorney to imply
facts that “[t]here isn’t anything” to a veil-piercing claim, the attorney would have to imply a factual
assertion that the second prong of the claim is met—that the claim is “necessary to avoid injustice
or fundamental unfairness.” Because this is a subjective inquiry made by a court, it is not a “fact
susceptible of knowledge,” and even if it was, it is unreasonable to conclude that PRG’s attorney
falsely implied that a veil-piercing claim in this case would not meet this prong. In other words, if
PRG’s attorney was to evaluate the claim and decide that it was viable, the attorney would have to
conclude that it would be unjust and fundamentally unfair for the attorney’s client to escape liability.
Those are not the type of conclusions we can expect, or even desire, a legal advocate to make, and
they are generally not susceptible of the attorney’s knowledge.
***
In light of Steve Hoyt’s extensive legal and business background, his documented practice of
relying on his own legal counsel in his business practices, and his standard lease clause advising
others to do the same, I conclude that on this record, Hoyt Properties fails to establish reasonable
reliance on PRG’s attorney’s statements as a matter of law. Steve Hoyt’s bare assertions that
“lawyers [in this city] are pretty forthright and honest” and “have a duty to tell the truth” are not
legally sufficient to establish a genuine issue of material fact regarding reasonable reliance.
Therefore, I conclude that Hoyt Properties cannot establish the fourth element of fraudulent
misrepresentation.
Finally, I also share the policy concerns of amicus curiae Minnesota Defense Lawyers
Association that the majority’s decision will have the adverse effect of discouraging settlement
among parties, based on a lack of confidence in the enforceability of settlement agreements. Fewer
settlement agreements could create further demands on the court system and also create additional
risk and expense for parties in litigation. Further, I am concerned that what the majority has done
with its opinion is to design a roadmap with a well-defined exit route for parties who experience
remorse after entering into a settlement agreement. . . .
———————

137
POINTS FOR DISCUSSION
1.As Hoyt Properties illustrates, it can be difficult to determine whether a representation is one of fact or
opinion. Comment d to Section 525 of the RESTATEMENT (SECOND) OF TORTS (1977) provides:

Strictly speaking, “fact” includes not only the existence of a tangible thing or the happening
of a particular event or the relationship between particular persons or things, but also the state of
mind, such as the entertaining of an intention or the holding of an opinion, of any person, whether
the maker of a representation or a third person. Indeed, every assertion of the existence of a thing
is a representation of the speaker’s state of mind, namely, his belief in its existence. There is
sometimes, however, a marked difference between what constitutes justifiable reliance upon
statements of the maker’s opinion and what constitutes justifiable reliance upon other
representations. Therefore, it is convenient to distinguish between misrepresentations of opinion
and misrepresentations of all other facts, including intention.

A statement of law may have the effect of a statement of fact or a statement of opinion. It
has the effect of a statement of fact if it asserts that a particular statute has been enacted or
repealed or that a particular decision has been rendered upon particular facts. It has the effect of
a statement of opinion if it expresses only the actor’s judgment as to the legal consequence that
would be attached to the particular state of facts if the question were litigated. It is therefore
convenient to deal separately with misrepresentations of law.

2.Likewise, the RESTATEMENT (SECOND) OF CONTRACTS (1981) deals with misrepresentations,

providing that they can both prevent contract formation and make a contract voidable.

§ 163 When a Misrepresentation Prevents the Formation of a Contract

 If a misrepresentation as to the character or essential terms of a proposed contract induces
conduct that appears to be a manifestation of assent by one who neither knows nor has reasonable
opportunity to know of the character or essential terms of the proposed contract, his conduct is
not effective as a manifestation of assent.

§ 164 When a Misrepresentation Makes a Contract Voidable

(1)If a party’s manifestation of assent is induced by either fraudulent or material misrepresentation

by the other party upon which the recipient is justified in relying, the contract is voidable by the
recipient.

While the difference between whether a contract is void or voidable may seem small,
misrepresentations in negotiation can lead to very serious consequences
138
including criminal liability for fraudulent misrepresentations involving both restitution and jail time.

3.Misrepresentation is not the only common law action that lawyer negotiators need to be wary of. For
example, improper bargaining pressure on weaker parties can give rise to claims of duress or undue influence
during contract formation. Duress results from two categories of threats, (a) physical threats forcing a party
to enter into a contract and (b) threats of criminal conduct, wrongful seizure or retention of goods, or legal
process leaving no reasonable alternative to entering into a contract. Typical bargaining stress and pressure
associated with leverage such as refusing future dealings or hard bargaining between experienced
counterparts are not the kind of threats contemplated by duress. See RESTATEMENT (SECOND) OF
CONTRACTS § 176 (1981). Undue influence, on the other hand, occurs when a person in a trusted role or
position exploits that trust to unfairly manipulate the other’s judgment when deciding whether to enter into
a contract. It is not necessary for the trusted person to benefit from the use of his or her influence. The
typical remedy for duress and undue influence victims is rescission of the contract as opposed to an
affirmative claim for damages. See id. § 177. See generally ART HINSHAW, NEGOTIATION ETHICS, IN 1 THE
NEGOTIATOR’S DESK REFERENCE (Andrea Kupfer Schneider & Christopher Honeyman eds., 2017).

Negotiation Nugget

For more on the law of bargaining see Russell Korobkin, Michael Moffitt, and Nancy Welsh, The
Law of Bargaining, 87 Marq. L. Rev. 839 (2004).

4.In the U.S., parties have no common legal obligation to negotiate in good faith to reach a final
agreement. There are some statutory exceptions, most notably in the collective bargaining context. For
example, the National Labor Relations Act imposes a duty on labor and management to bargain in “good
faith.” Determining what is and is not good faith is difficult, and typically comes down to a list of actions
and tactics that are prohibited, such as disengaging from negotiations within a certain time frame or
presenting take-it-or-leave-it offers. In addition, parties may enter into a binding agreement expressing their
commitment to negotiate in good faith. A cause of action for breach of the duty to negotiate in good faith
therefore requires the following showings: 1) both parties manifested an intention to be bound by an
agreement to negotiate in good faith; 2) the terms of the agreement are sufficiently definite to be enforced;
and 3) consideration was conferred. See Flight Sys., Inc. v. Elec. Data Sys. Corp., 112 F.3d 124, 130 (3d Cir.
1997), Bennett v. Itochu Int’l Inc., 682 F. Supp. 2d 469 (E.D. Pa. 2010) (finding that “non-binding” term sheet
nonetheless conferred a bargained-for benefit and was sufficient to give rise to duty to negotiate in good
faith).

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5.Professor Michael Moffitt argues that current malpractice actions focus too heavily on lawyer-as-
litigator instead of lawyer-as-settlor concepts. Although the vast majority of legal actions settle, only:

1 percent of reported legal malpractice cases and only about 1.5 percent of bar complaints
relate to lawyers’ roles in settlement. . . . Instead, the realities of modern lawyering, in which the
lawyer-as-settlor role is more prominent, demand that lawyers be held to a different set of
standards than those created solely with litigation in mind. . . . The advice lawyers provide to their
clients about the prospect of settlement does not deserve the sweeping judgmental deference of
lawyers’ litigation decisions. . . . Clients’ ability to exercise autonomy—the ability to choose
between settlement and continued litigation—should be recognized in practice, not just in the
theoretical or aspirational standards of the profession.

Negotiation Nugget

For an in-depth discussion of the negotiation issues surrounding plea bargaining, see Cynthia
Alkon, Plea Bargaining: An Example of Negotiating with Constraints, in The Negotiator’s Desk
Reference 683 (Chris Honeyman & Andrea Kupfer Schneider eds., 2017).

Michael Moffitt, Settlement Malpractice, 86 Univ. of Chicago L. Rev. 1825, 1893 (2019).

6.Although our primary focus is on lawyers’ involvement in negotiating civil litigation settlement and
transactions, lawyers also negotiate constantly in the criminal context. And, not surprisingly, claims of
coercion also arise in connection with plea bargaining. The seminal case in this area is Brady v. United States,
397 U.S. 742 (1970). Brady holds that when a defendant negotiates a guilty plea and thus waives the
constitutional right to trial, such waiver “not only must be voluntary but must be [a] knowing, intelligent
act[ ] done with sufficient awareness of the relevant circumstances and likely consequences.” Id. at 748.
32Ausherman v. Bank of Am. Corp., 212 F. Supp. 2d 435, 449 (D. Md. 2002), aff’d 352 F.3d 896 (4th Cir. 2003).
42Model Rules of Prof’l Conduct r. 1.6(b)(2), (3) (Am. Bar Assn. 1983).

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CHAPTER 6

DIFFERENCES AMONG NEGOTIATORS

As we have already mentioned, negotiators often make assumptions about the motives and
goals of their negotiation counterparts. Sometimes these assumptions are grounded in substantial
experience in negotiating with that person or others who seem similar to her. In other cases, these
assumptions are grounded in stereotypes, which themselves may be based on substantial (or limited)
experience or commonly held understandings about characteristics of people who belong to a
certain social identity group.
 At times, these stereotypes will prove useful; at other times, however, they will mislead. There
is a growing amount of scholarly work on culture and conflict. There is also a growing recognition
of the extent and effects of implicit bias and unconscious bias. See, e.g., Anthony G. Greenwald &
Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945 (2006); Debra Lyn
Bassett, Deconstruct and Superstruct: Examining Bias Across the Legal System, 46 U.C. Davis L. Rev. 1563
(2013). Recall our earlier discussion about the mental shortcuts, or heuristics, that we rely upon so
frequently. Recall, too, our discussion of the frequently negative effects of cognitive biases and the
fundamental attribution error.
We cannot, and perhaps would not even want to try to, offer here an exhaustive catalogue of
the values, strategies and techniques that could characterize negotiators from different cultures or
social identities. Rather, we will focus on helping you to develop a way to think about these issues
in negotiation. We begin by suggesting the overwhelming importance of approaching these topics
with humility and open-mindedness. We can only learn from and about each other if we are willing
to listen.

A.CULTURE
“Culture” is not a simple concept. In the following reading, Professor Jayne Seminare
Docherty, an anthropologist, describes three different ways of thinking about culture and
negotiation. Moving from what she considers to be the least sophisticated to the most sophisticated,
these three approaches are the “tip of the iceberg” approach, the “patterns” approach, and the
“symmetrical anthropology” approach. After we consider each of these in turn, we will then
explore subcultures.
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JAYNE SEMINARE DOCHERTY, CULTURE AND NEGOTIATION: SYMMETRICAL

ANTHROPOLOGY FOR NEGOTIATORS
87 Marq. L. Rev. 711, 712–717 (2004)

Unfortunately, some negotiation texts—particularly but not exclusively popular books on

negotiation—focus almost entirely on the part of the iceberg visible above the surface. In these
texts, cultures are presented as lists of do’s and don’ts. These lists are rooted in stereotypes and are
of dubious value. Teaching negotiators about culture in this manner is of limited value and might
actually be dangerous in some settings.
***
A more sophisticated approach to culture in negotiation involves identifying patterns or types
of cultures by studying a large group of cultures. Instead of getting inside of a specific culture to
understand it, this approach stands outside of cultures and looks for patterns or cultural styles.
These are often presented as a list of dichotomous characteristics including: high context/low
context; individualism/collectivism; and egalitarian/hierarchical. A high-context culture often
relies on indirect communication, because the participants are expected to understand the complex
meaning of relatively small non-verbal gestures. A low-context culture will tend to rely on direct
statements and formal, clear ratification of written negotiated agreements. Negotiators from
individualist cultures may worry less about preserving relationships than negotiators from
collectivist cultures. And, negotiators from egalitarian cultures are likely to be less concerned about
issues of rank and privilege than negotiators from hierarchical cultures.
***
The most complete and sophisticated way of thinking about culture and negotiation requires
that we greatly enrich our definition of culture. Avruch offers the following definition: “For our
purposes, culture refers to the socially transmitted values, beliefs and symbols that are more or less
shared by members of a social group, and by means of which members interpret and make
meaningful their experience and behavior (including the behavior of ‘others’).” He also points out
that this definition includes a number of assumptions. First, individuals belong to multiple groups
and therefore carry multiple cultures. The implication is that an encounter between two individuals
is likely to be a multicultural encounter since each participant can draw on more than one culture
to make sense of the situation. This includes negotiation encounters. Second, it is important to
understand the institutions and mechanisms that transmit culture. Third, culture is almost never
perfectly
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shared by all members of a community or group. Individuals have the capacity to selectively
adopt and adapt their multiple cultures, so you cannot assume that a person from culture X will do
Y. Each party can draw from, adapt, and modify a multifaceted set of cultural norms and rules;
therefore every intercultural encounter is a complex improvisational experience.
It is critically important to remember that our own cultures are largely invisible to us; they are
simply our “common sense” understandings of the world. Hence, “conflict is, at essence, the
construction of a special type of reality. Most of the time we assume and take for granted that we
share a single reality with others, but we do not.” We see culture when we are forced to recognize
that not everyone experiences and lives in the world the way we do. Perhaps we experience
“language shock” when we recognize that someone may be speaking the same language, but we
are not sure they live on the same planet we do. Or, we may encounter someone whose “moral
order”—their “pattern of . . . compulsions and permissions to act in certain ways and [their]
prohibitions against acting in other ways”—differs from our own. In negotiations, these moments
of shock and surprise may occur around issues of risk because risk is very much a cultural construct.
We may also experience surprise when people use the same language, even the same metaphors,
but we discover that their shared language is actually covering over profound differences in their
sense of reality. What we assume is negotiable may not be negotiable to another person and vice
versa.

Note

Professor Kimberlé Crenshaw coined the term intersectionality in 1989 to describe the way overlapping
social identities do not fit conventional ways of understanding inequalities or disadvantages. See
Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination
Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139.

As negotiators, the recognition that we have a culture too reshapes the reality within which
we work. We are forced to grapple with the fact that the very domain of our work—social
conflict—is culturally constructed.
 ***
When we encounter cultural differences about when and how to negotiate, we can focus on
what the other person is doing “wrong” compared to us. . . . Or, instead of focusing on what is
wrong with the other culture, we can become adept at a form of “symmetrical anthropology” that
is “capable of confronting not beliefs that do not touch us directly—we are always
144
critical enough of them—but the true knowledge to which we adhere totally.” We can subject
our own culture(s) to the same scrutiny we apply to the culture(s) of others. That means we will
need to become critically aware of our own assumptions about negotiation. What does it mean to
say “get beneath positions to interests?” Does everyone share the assumptions about human nature
and social relationships on which this approach to finding a “win-win” solution rests?
———————

POINTS FOR DISCUSSION

1.Professor Docherty refers to three dichotomies that researchers have studied: high-context versus
low-context, individualist versus collectivist, and egalitarian versus hierarchical. Researchers categorize the
United States as low-context, individualist, and egalitarian.

2.Professor Docherty offers several suggestions to those who would like to improve their skills as
“symmetrical anthropologists,” including broadening one’s expectations, attempting to understand our own
and others’ worldviews, and exploring the metaphors that people embroiled in conflict use in their speech.

3.How might one handle cultural differences in negotiation? Consider the following suggestion:

First, while cultural/national boundaries clearly do exist, much of what passes for such
differences may well be the result of expectations and perceptions which, when acted upon, help
to bring about a form of self-fulfilling prophecy. Perhaps the best way to combat such
expectations is to go out of one’s way to acquire as much information as one can beforehand
about the way people in other cultures view the kind of problem under consideration. Thus, if
we are negotiating with a German about a health care contract, we should try to find out whatever
we can about how Germans tend to view health care. Of course, in large countries, there may be
regional variations that also need to be taken into account. Second, it is important to enter into
such negotiations with self-conscious awareness of the powerful tendency we share toward
stereotyping; this kind of consciousness-raising may, in its own right, help make it a bit less likely
that we will slip into a set of
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perceptual biases that over-determine what transpires in the negotiations proper.

Negotiation Nugget

For an in-depth discussion on culture and negotiation see Jeanne M. Brett, NEGOTIATING
GLOBALLY (2001).

Third, it is important to enter into negotiations across cultural/national lines by trying to

give your counterpart the (cultural) benefit of the doubt. Just as you would not wish others to
 assume that you are nothing more than an exemplar of people from your culture, try similarly to
avoid making the same mistaken assumption about the other person.

Jeffrey Z. Rubin & Frank E.A. Sander, Culture, Negotiation, and the Eye of the Beholder, 7 Negot. J. 249, 252
(1991).

4.Cultures may be divided further into subcultures, which can be quite different within a single culture.
For example, if we assume that there is a national culture within the United States, there are still different
regional subcultures that can be extraordinarily important from a conflict and negotiation perspective. For
example, how would you describe the differences between the cultures of New York, Los Angeles, St. Louis,
and Atlanta? Or between a big city and small town in your state? How might these cultural differences impact
legal negotiations?

5.Religion provides another example of the culture/subculture phenomenon. Jeffrey Seul observes,
“Religion offers much more to individuals and groups in their effort to construct and maintain secure
identities than do most other social institutions, so religion is often at the core of individuals’—and groups’—
conceptions of themselves.” Jeffrey R. Seul, Religion and Conflict, in THE NEGOTIATOR’S FIELDBOOK: THE
DESK REFERENCE FOR THE EXPERIENCED NEGOTIATOR 323, 325 (Andrea Kupfer Schneider &
Christopher Honeyman eds., 2006). How might religious differences impact legal negotiations?

B.GENDER
A negotiator’s gender may also play a role in negotiation. The following excerpt highlights the
behavior (and perceptions of behavior) of women who negotiate as lawyers and other professionals.
As you read this excerpt, consider whether, in your experience, the assertions made ring true.

CARRIE MENKEL-MEADOW, WHAT DIFFERENCE DOES “GENDER DIFFERENCE” MAKE?

18 Disp. Resol. Mag. 4, 5–7 (2012)

This essay reviews some of the continuing efforts to determine whether gender has any
significant or predicable impact on dispute resolution behavior. I continue to think this is an
interesting, but inconclusive question, especially because dispute resolution is itself an interactive
process involving parties, representatives (lawyers) and dispute resolvers or facilitators (negotiators,
mediators, arbitrators and judges, among other roles), so that
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the mix or context of gendered participants interact with each other and also with the site
(court, private mediation, quasi-private arbitration, negotiation) and subject matter of any particular
dispute. Although I continue to think that gender somehow matters, sometimes, in some places,
more recent research indicates that the difference that gender difference makes is quite variable,
depending on case type, context, role of participant (e.g., agent or principal) and now perhaps,
different generations of disputants and disputes.
***
Professionals in Dispute Resolution: Lawyers and Other Representatives
Carol Gilligan’s work in the 1980s produced many studies seeking to discern if there were
gender differences in different professions, especially the legal profession, and in different decision-
making contexts. One of her students studied differences in ethical decision-making by male and
female lawyers and learned that when lawyer ethical rules were relatively clear, there were little to
no differences in how male and female lawyers decided what was ethically mandated. But when the
rules were more ambiguous, such as whether to turn over adverse evidence to a lawyer on the other
side of a case, or when actual harm to a person was involved, such as custody issues for children,
women lawyers were slightly more likely to consider “justice” to the other side, rather than “pure”
zealous advocacy. Later studies by Gilligan have demonstrated some merging of gender differences,
that is, more girls moving to the male (clearer “justice” rule-based) mode of decision-making, while
a smaller core of girls and young women remain committed to a “care” and relational approach to
moral decision making and problem solving, though studies also demonstrate that newer
generations engage in more “cross-over” or context specific forms of reasoning.
Earlier work on women in business and other professional settings demonstrates that to the
extent women have something particular or different to offer, there must be a “critical mass”
(variable in different sectors) for the message to be accepted on its own merits and be “detached”
from a gendered representation. Studies of both law students in negotiation classes and now a few
of lawyers confirm that negotiated outcomes do not differ by gender. But perceptions of results
achieved (e.g., women are more self-doubting and critical, are more likely to take negotiation
courses pass/fail) or assumptions that stereotypic behavior is expected continue to document
differences between perceptions and assumptions and the actual outcomes and behaviors in
negotiation.
147

Of the more recent studies on lawyer behavior, particularly in the mediation setting, Relis
suggests that women lawyers, particularly defense counsel in medical malpractice cases, had greater
“extra-legal sensitivity” (the need for non-compensatory items, like apologies, etc.) and concern
for parties on the other side of cases than did male attorneys. But Relis also found that more
facilitative female mediators, especially non-lawyer mediators, tended to be overpowered by
aggressive male litigators in mediation settings, suggesting that some of the earlier observed gender
differences are not yet gone. Relis’ study also found that female plaintiffs were more likely to be
overpowered by male mediators during mediations than male plaintiffs, demonstrating that the
interaction of the gender of the party, lawyer or representative and dispute manager professional
(mediator or judge) is complex. It often involves, as Relis eloquently states, “differentially
experienced parallel worlds” in mediation by parties, lawyers and mediators, where gender
differential is still part of the experience.
———————

POINTS FOR DISCUSSION

1.We use generalizations to simplify a complicated world. In this regard, generalizations are second
cousins to the stereotypes, cognitive biases, and heuristics introduced throughout this book. As you have
seen, and will continue to see, these sorts of “mental shortcuts” are inevitable, sometimes useful, and
sometimes very dangerous. Available empirical research has explored the generalization that certain
categories of people are more likely than others to recognize and grasp opportunities for negotiation. The
people who recognize and grasp these opportunities tend to do better. Professor Linda Babcock and Sara
Laschever examine this phenomenon through the prism of gender:
 Could it be that women don’t get more of the things they want in life in part because they
don’t think to ask for them? Are there external pressures that discourage women from asking as
much as men do—and even keep them from realizing what they can ask? Are women really less
likely than men to ask for what they want?

To explore this question, Linda conducted a study that looked at the starting salaries of
students graduating from Carnegie Mellon University with their master’s degrees. When Linda
looked exclusively at gender, the difference was fairly large: The starting salaries of the men were
7.6 percent or almost $4,000 higher on average than those of the women. Trying to explain this
difference, Linda looked next at who had negotiated his or her salary (who had asked for more
money) and who had simply accepted the initial offer he or she had received. It turned out that
only 7
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percent of the female students had negotiated but 57 percent (eight times as many) of the
men had asked for more money.

Linda was particularly surprised to find such a dramatic difference between men and women
at Carnegie Mellon because graduating students are strongly advised by the school’s Career
Services department to negotiate their job offers. Nonetheless, hardly any of the women had done
so. The most striking finding, however, was that the students who had negotiated (most of them
men) were able to increase their starting salaries by 7.4 percent on average, or $4,053—almost
exactly the difference between men’s and women’s average starting pay. This suggests that the
salary differences between the men and the women might have been eliminated if the women had
negotiated their offers.

LINDA BABCOCK & SARA LASCHEVER, WOMEN DON’T ASK: NEGOTIATION AND THE GENDER DIVIDE, 1–
2 (2003). In a subsequent laboratory experiment designed to study propensity to negotiate, Professor
Babcock and two colleagues, Deborah Small and Michele Gelfand, found that “almost nine times as many
male as female subjects asked for more money.” LINDA BABCOCK AND SARA LASCHEVER, WOMEN DON’T
ASK: THE HIGH COST OF AVOIDING NEGOTIATION AND POSITIVE STRATEGIES FOR CHANGE, 2–3
(2007). Two subsequent studies suggested that men initiate four times as many negotiations as women. The
lesson? Regardless of any of your sources of social identity, it is important to ask for what you want.

Negotiation Nugget

For an interesting take on women and negotiation, see Andrea Schneider, Women Don’t
Negotiate and Other Similar Nonsense, TEDx, https://www.youtube.com/watch?time_
continue=5&v=jFX1wAOv724.

2.A recent meta-analysis found “small and highly variable” gender differences in negotiation and
important contextual differences that influenced the outcomes obtained by men and women. The authors
situate these contextual differences within research on gender roles, suggesting that “women who deviate
from the female role—for instance by acting assertively—risk incurring social backlash.” The researchers
further stated, “Notably, the results revealed a bargaining advantage for men under conditions of highest
predicted
149
 role incongruity for women (when negotiators are not experienced, in negotiations with high structural
ambiguity, and [when negotiators are bargaining on behalf of themselves]), but a bargaining advantage for
women under conditions of lowest predicted role incongruity (when they possess negotiation experience, are
negotiating for an individual, and [in negotiations with low structural ambiguity]).” Jens Mazei, Joachim
Hüffmeier, Philipp Alexander Freund, Alice F. Stuhlmacher, Lena Bilke & Guido Hertal, A Meta-Analysis on
Gender Differences in Negotiation Outcomes and Their Moderators, 141 Psychol. Bull. 85, 85–86 & 94 (2015).

Negotiation Nugget

For Professor Schneider’s take on men and negotiation see Gender and Negotiation: What
About the Guys? https://law.unlv.edu/webcast/2018-chris-beecroft-lecture-andrea-schneider.

3.The Mazei, et al. study looked at 51 separate studies of gender and negotiation that compared and
reported final economic outcomes achieved by women and men in actual negotiation tasks in which
economic outcomes could be achieved, such as salary negotiations. Only two of the 51 studies were of
lawyers—or more precisely of law students. Does this make the study’s conclusions irrelevant to lawyers?
Professor Charles B. Craver has kept copious records of the outcomes of his law students’ negotiation results
throughout his career. He reports:

Since 1973, I have taught Legal Negotiation courses in which we study the negotiation
process and the factors that influence bargaining interactions. . . . Over the past thirty-five years,
I have performed several statistical analyses of student negotiation performance based upon
gender. I have found absolutely no statistically significant differences between the results achieved
by men and by women. The average results are almost identical.

CHARLES B. CRAVER, LEGAL NEGOTIATING: SKILLS AND VALUES 143 (2d ed. 2012). Why do you think
Professor Craver obtained a different result from the Mazei, et al., study?

4.Based on Professor Andrea Schneider’s empirical study of negotiators in Chicago and Milwaukee,
Professor Schneider and her colleagues suggest, consistent with results of the Mazei, et al. study discussed in
note 2, that when women lawyers are negotiating on behalf of their clients, they are significantly less likely
to confront the effects of social backlash. Andrea Kupfer Schneider, Catherine H. Tinsley, Sandra Cheldelin
& Emily T. Amanatullah, Likeability v. Competence: The Impossible Choice Faced by Female Politicians, Attenuated by
Lawyers, 17 Duke J. Gender L. & Pol’y 363, 364 (2010). The coauthors also provide advice for female lawyers
in other contexts where social backlash may be more salient. See also Laura J. Kray, Leading Through Negotiation:
Harnessing the Power of Gender Stereotypes, 50 Cal. Mgmt. Rev. 159 (2007); Andrea Schneider, Negotiating While
Female, 70 SMU L. Rev. 695 (2017).

5.What should a woman, a man, or anyone do when they encounter identity-based stereotypes and
offensive behavior? Professor Andrea Schneider suggests four types of responses a negotiator can make to
an offensive comment—ignoring, confronting, deflecting, and engaging. Ignoring, simply disregarding the
comment, and confronting, challenging the statement, are at opposite ends on the
150
spectrum of possible responses. Deflecting means acknowledging the statement and moving on, while
engaging means having an open conversation about the speaker’s purpose in making the remark and your
feelings upon hearing it. Not surprisingly, engaging can be the most difficult as it requires checking your
assumptions about the speaker’s intentions by asking what their purpose was in making the comment. After
the speaker responds, you can gather additional data about intentions and ask further questions. Professor
Schneider believes that engaging is the most advantageous response as it focuses on understanding in a
nonconfrontational and nonthreatening manner. In addition, such engagement does not have to happen
immediately; it can be done at a later date. See Andrea Schneider, Effective Responses to Offensive Comments, 10
Negot. J. 107, 111–113 (1994).

6.Many people believe that ethical decision making is affected by one’s gender, and most of the studies
on the topic find either that women act more ethically than men or there is no difference. Professors Leigh
Thompson and Jason Pierce conducted a series of experiments that found men were more competitive than
women in negotiations (and tended to lie more) and women were more empathetic than men (and lied less).
However, when Professors Thompson and Pierce framed the negotiations in a more competitive context,
women became more competitive (and lied almost as much as the men). Similarly, when they framed the
negotiation in a more empathetic context, men become more collaborative (and lied less). Leigh
Thompson, Simple Prompts Can Get Women to Negotiate More Like Men, and Vice Versa, Harv. Bus. Rev.
(September 17, 2018). Professors Art Hinshaw and Jess Alberts also looked at gender as a part of a much
larger study of negotiation ethics. The study focused on a client’s request to his lawyer to engage in a
fraudulent negotiation scheme to settle a claim in clear violation of Rule 4.1 of the Model Rules of
Professional Conduct. They found no difference in the responses of male and female lawyers when asked to
engage in the fraudulent strategy, but they did find a difference in a follow-up request to engage in an
omission strategy that also violated Rule 4.1. Male lawyers refused this request at a higher rate than did female
lawyers (68% compared to 53%), and female lawyers were more likely to indicate that they would engage in
the omission strategy than male lawyers (18% compared to 12%). Interestingly, Hinshaw and Alberts found
that professional experience played a part in this result as female lawyers with less than 10 years of legal
experience were least likely to refuse the request and most likely to agree to the request as compared to male
or female lawyers with 10–19 years of experience and 20 or more years of experience. What might explain
this difference? See Art Hinshaw & Jess K. Alberts, Gender and Attorney Negotiation Ethics, 39 Wash. U. J.L. &
Pol’y 145, 162–166 (2012).

C.RACE
Like culture and gender, reactions to a negotiator’s race may influence negotiation behavior.
The following excerpt by Professor Michael Green
151
describes the results of several studies that have explored the effects of race on negotiation
outcomes.

MICHAEL Z. GREEN, NEGOTIATING WHILE BLACK

in THE NEGOTIATOR’S DESK REFERENCE 563, 563–581
(Christopher Honeyman and Andrea Kupfer Schneider, eds. 2017)

Looking at all the difficult experiences for a black person in our society . . . one could easily
view most transactions as not fitting the platitudes espoused in the dispute resolution community
about resolving disputes in a creative way and expanding the pie beyond a zero-sum game. Rather,
to be black and negotiating a transaction, chances are the black person may perceive the negotiation
process as a game where the black person involved is merely a pawn destined to lose the game. . . .
In reviewing the studies that capture what it is to be negotiating while black, one can better
understand the realities of this problem even if negotiation theorists have rarely addressed this
subject in any comprehensive and prescriptive manner. For decades, commentators have raised
concerns about the prejudice involved with informal dispute resolution processes. Cynthia Mabry
expresses these concerns for blacks in negotiations as far back as 1998.
Empirical studies have shown that race affects negotiations. For example, when
adversaries are members of the same race, they bargain more cooperatively with one
another. Same-race disputants are more cooperative because they trust each other more
easily than they trust people of different racial groups. In contrast, intercultural
adversaries endeavor to ‘maintain a certain face or posture in the eyes of someone
different.’ This posturing influences the parties’ efforts to solve their problem.
***
[T]he most prominent studies of race in negotiation while being black were conducted by Ian
Ayres, now at Yale Law School. . . . Unlike any other scholar in this field, Ayres used testers as the
groundwork for assessing the implications of negotiation based on race. In a 1991 study, with one
report in 1991 and further analysis from a new and expanded audit of that study with resulting data
and conclusions reported in 1995, Ayres examined differences based upon race by using pairs of
testers, always including a white male versus someone of a different race, who were all trained to
negotiate the same way and sent to purchase a new car at randomly-selected Chicago auto
dealerships. Overall, Ayres found that black buyers were induced to pay much higher prices due to
both the initial offer they received from the
152
salesperson and also the final offer which represented the lowest price offered by the
salesperson after a number of rounds of bargaining. Specific results demonstrated that “[b]lack
female testers were asked to pay over three times the mark-up of white male testers, and black male
testers were asked to pay over twice the white male markup.” Ayres also found that salespersons
believed that white males had better search details and were more informed about the dealer’s
actual costs than black purchasers. The Ayres studies did not address discrimination in automobile
loan financing because the script for those testers required that they inform the dealerships that
the testers would provide their own financing.
Twenty years later and with similar concerns about fair negotiations of car purchases by blacks
(but this time with respect to loan financing), the United States Department of Justice (DOJ)
brought a federal court action against “Japanese automaker Honda [who] agreed to pay $25 million
to settle US claims that it discriminated against minority buyers by overcharging them for auto
loans.” The DOJ asserted that Honda had charged higher interest rates on car loans based on race
rather than purchasers’ “creditworthiness or other objective criteria related to borrower risk.”
Although Honda denied it had discriminated, in the July 2015 settlement Honda agreed to give $24
million to be used to compensate purchasers who had allegedly been subjected to discrimination,
and an additional one million dollars for consumer education programs. The DOJ and the
Consumer Financial Protection Board (CFPB) alleged that Honda dealers made black borrowers
pay $250 more per auto loan than white borrowers. Even before this Honda case, researchers had
established that blacks “receive higher interest rates on car loans obtained from car dealers than
similarly situated white borrowers. . .while those who receive loans directly from banks or credit
unions do not.” Before the Honda case, regulators, including the DOJ and CFPB, had already
pursued similar lending discrimination claims based on race against automobile dealers including a
case resulting in a $98 million settlement by Ally Financial which did not take applications directly
from consumers and instead made most of its loans through car dealers nationwide who were
allowed to add discriminatory markups based on race. There are other studies after the Ayers
studies that further demonstrate the existence of unique consequences for blacks while negotiating.
One study suggested that “real estate agents have been found to more frequently offer to white
[rather] than minority homebuyers ‘reduced closing costs or lower mortgage rates through affiliated
lending and service companies.’ ”
153

Ian Ayres has even more recently noted, in a 2011 unpublished paper with co-authors
Mahzarin R. Banaji and Christine Jolls, that more nuanced and technical forms of negotiating such
as through electronic bartering and auction services like eBay have also indicated biased results for
black persons. Ayres and his co-authors constructed a field experiment to test the effects of race
on transactions involving baseball card auctions on eBay. The tester elements involved a display of
photographs showing the cards being “held by either a dark-skinned/African American hand or a
light-skinned Caucasian hand.” Their results indicated that the “[c]ards held by African-American
sellers sold for approximately 20% ($0.90) less than the cards held by Caucasian sellers.”

Negotiation Nugget

For more information on the eBay experiment, see Ian Ayres et al., Race Effects on eBay, 4 Rand.
J. Econ. 891 (2015).

A similar study on the effects of race in negotiations was also created by Jennifer Doleac and
Luke Stein in the on-line sale of an Apple iPod. These researchers “posted classified advertisements
offering an iPod Nano portable digital music player for sale on several hundred locally focused
websites throughout the US” and signaled race by the skin color of the hand holding a picture of
the iPod being offered for sale in the advertisement. This study differed somewhat from the Ayres
eBay study because the eBay parties would never expect to meet and the purchases through eBay
were insured by eBay. The participants in the iPod study would expect to meet in person to close
the deal, and there was no insurance involved.
The Doleac and Stein study specifically used pictures of a man’s black hand, or a man’s white
hand, or a man’s white hand with a tattoo, each holding a new, unopened iPod Nano. Potential
buyers responded via anonymized email addresses. There was no formal bidding process and
“either party [could] cease communication at any time without facing any consequences.” About
two hours after each advertisement was posted, the researchers sent an email to each responder
stating they received numerous responses and asked for their best offer. From these results, the
researchers concluded: “Black sellers receive 18% fewer offers than white sellers, whereas tattooed
sellers receive 16% fewer.” Also, with respect to amounts, the mean offer received was $49.86 and
maximum offer of $54.05. But, “[c]ompared with white sellers, black sellers receive average offers
of $5.72 (11%) lower and tattooed sellers $5.53 (10%) lower.” Further, the researchers concluded
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that both “[b]lack and tattooed sellers” received the “best offers” which were “also lower than
whites’, by $7.07 (12%) and $6.60 (11%), respectively.”
 Final conclusions from Doleac and Stein were that “black sellers suffer worse market
outcomes than their white counterparts” including the receipt of “13% fewer responses and 18%
fewer offers” and these negative results were “similar in magnitude to those associated with a
seller’s display of a wrist tattoo.” Also, this study found that “black sellers do better in markets
with larger black populations, suggesting that the disparities may be driven, in part, by buyers’
preference for their own-race sellers.”
***
[O]ne can see how a black person might have realistic expectations that actual negotiations
will result in nothing but poor results—based on being black. And black persons, more likely than
any other racial group, tend to find themselves pressured to “cover” or conform to norms that
deny their racial identity at work. This form of covering in salary negotiations represents a tradeoff
between the lesser of two evils related to racial stereotyping[.] She must act against her own
financial interest to lose the battle for a higher negotiated salary in order to win the war of not
losing out on overall professional opportunities for being viewed as incompetent or unqualified or
lazy based upon a racial stereotype.
***
As a result, and beyond attempting to capture much of the literature identifying harsh
consequences when negotiating while black, this chapter should highlight one final concern. Unless
the black person in the negotiation has as much information as a similar white counterpart, be it
through social or Internet networks or some other means, and the white person negotiating with
her focuses on excising any conscious and subconscious race-based stereotypes from the process,
negotiating while black, even in 2015 and even with relatively well-meaning counterparts, means
that unproductive obstacles still exist. . . .
———————

POINTS FOR DISCUSSION

1. What is someone to do when faced with such significant and abhorrent behavior?
Negotiation expert Marty Latz offers this advice: find common interests to build rapport,
focus on objective standards, and decide offer-concession moves based on patterns.
Building rapport, he explains, is an attempt to redefine the “in-
155
2. group” away from race and toward a commonality to minimize unconscious bias.
Focusing the negotiation on objective standards—a fundamental negotiation concept we
discuss in Chapter 2—sets the value of the negotiation on factors neither side controls
thereby minimizing the extent that race is a factor. Following offer-concession patterns,
simply described as modeling your strategy after what either works or is expected in the
particular setting, requires deep knowledge of one’s negotiation environment. What all of
these strategies require, however, is preparation. Marty Latz, Power Strategies to Counter
Racial Discrimination in Negotiations (available
at https://www.expertnegotiator.com/tip/counter-racial-discrimination-in-
negotiations/?utm_source=monthly%20column&utm_medium=email&utm_
campaign=monthly%20column).
 2.As with his comparison of gender in his negotiation class, Professor Craver has examined the results
of negotiation assignments with law students for effects of race.

In my study, I compared the negotiation results achieved over a nine-year period by Black
and White students in my Legal Negotiation class. I did not find a statistically significant
difference for a single year or from the combined data. These results strongly suggest that the
participant’s race does not affect negotiator performance.

Charles B. Craver, What Makes a Great Legal Negotiator?, 56 Loy. L. Rev. 337, 342 (2010). Is this somewhat of
a rebuttal of the studies’ findings, or is something else going on? Note that the participants in the Craver
study were all law students who chose to take Professor Craver’s negotiation course, not a random sampling
of the general public. Do you think law students’ reactions to race are different than those of the general
public?

3.Several noted scholars have expressed concerns about how less powerful parties or members of
disadvantaged groups are likely to fare in consensual dispute resolution processes like negotiation or
mediation. See, e.g., Richard Delgado, Chris Dunn, Pamela Brown, Helena Lee & David Hubbert, Fairness
and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wisc. L. Rev. 1359; Trina
Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J. 1545 (1991). Professor Delagado
recently revisited these themes arguing that despite the near ubiquity of informal dispute processing, such
procedures still disadvantages poor and historically disadvantaged communities. Richard Delgado, Alternative
Dispute Resolution: A Critical Reconsideration, 70 SMU L. Rev. 595 (2017). Richard Delgado, The Unbearable
Lightness of Alternative Dispute Resolution: Critical Thoughts on Fairness and Formality, 70 SMU L. Rev. 611 (2017).
Does the Green excerpt corroborate their concerns?

4.In the early 1990s researchers looked at both litigated and mediated outcomes for minorities in the
small claims court in Bernalillo County Metropolitan Court in Albuquerque, New Mexico. The study found
that minority claimants
156
consistently received less money in mediation than non-minorities, while minority respondents
consistently paid more. Despite these results, minority claimants were more likely than non-minority
claimants to express satisfaction with the mediation process. Why do you think this is the case? See Michele
Herman, Gary LaFree, Christine Rack, Mary Beth West, METROCOURT PROJECT FINAL REPORT: A STUDY
OF THE EFFECTS OF ETHNICITY AND GENDER IN MEDIATED AND ADJUDICATED SMALL CLAIM
CASES (1993). Following up on the claim that dispute resolution processes produce biased outcomes based
on gender, race, ethnicity, or socio-economic status, Gilat J. Bachar and Professor Deborah R. Hensler
identified 38 studies where this hypothesis was tested. Due to the contrary and inclusive results, they
concluded that the answer is “we don’t know.” Gilat J. Bachar and Deborah R. Hensler, Does Alternative
Dispute Resolution Facilitate Prejudice and Bias? We Still Don’t Know, 70 SMU L. Rev. 817 (2017).

5.Professor Alyson Carrel argues the negative impact of private settlement on disadvantaged groups
may abate through the adoption of a cybersecurity platform called Multi-Party Computation, in which private
settlement data can be encrypted and computed to provide anonymized and aggregated data about the extent
to which certain harms are taking place in society. Alyson Carrel, Reimagining Settlement with Multiparty
Computation, NW. J. Tech & Intell. Prop BLOG (May 19, 2020), https://jtip.
law.northwestern.edu/2020/05/19/reimagining-settlement-with-multi-party-computation/.
 157

CHAPTER 7

TECHNOLOGY AND INNOVATION

If technology-related change has so deeply affected so many practices in our professional
and personal lives, it would stand to reason that it applies, in some way, to negotiation
as well. That negotiation is a human constant, a fundamental frame of human interaction,
might be true—but only in the most general sense. “People have always negotiated, and
probably will always negotiate, with each other in their personal and professional lives”
is probably a valid statement, at least to the extent that we can recreate human
interactions in the past and forecast their interactions in the future. However, this does
not equate with saying “people have always negotiated in the same way, in the same
contexts, with the same understanding of the interaction, with the same perception of
the other and with the same attitude toward their own goals.” Acknowledging
negotiation as a constant interactional framework is one thing; assuming that the how,
why, where, what and when of negotiation are all human constants is quite another.
Noam Ebner, Negotiation is Changing, 2017 J. Disp. Resol. 99, 106 (2017) (emphasis in original).
In this chapter, we explore how technology and innovation are shaping negotiation in the
21st-century. More specifically, we focus on how technology has increased options for where and
when to communicate and has allowed us to gather and harness data to support decision-making.
Within those lenses, we revisit earlier concepts such as cultural competency, trust, cognitive biases,
communication, and BATNA through the lens of technology.

A.TECHNOLOGY AS COMMUNICATION CONDUIT

In the wake of the COVID-19 pandemic, technology became a vital, if not sole, means of
communication for many. After years of skepticism and concern about the use of technology in
the legal and dispute resolution professions, lawyers were forced to quickly adopt and adapt to
technology to continue providing effective legal services.
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 While the daily average number of users increased 300% on the video conference platform
Zoom, there are many other technology platforms from which to choose when negotiating:
telephone, email, and in platform chats/direct messages/instant messages. Each communication
platform presents unique benefits and risks. Negotiators must assess and analyze which
communication mode is best suited for their situation just like they would analyze their client’s
interests or BATNA.
When selecting the most appropriate mode of communication, consider the following two
variables: where (in-person or in text-based and video-based platforms) and when (synchronously or
asynchronously). Below, we have excerpted two articles that explore these variables. The first article
focuses on negotiating via email: an asynchronous text-based platform. The second article focuses
on negotiation via video conferencing: a synchronous video-based platform.

1.Negotiating Via Email

NOAM EBNER, NEGOTIATING VIA EMAIL

in 1 THE NEGOTIATOR’S DESK REFERENCE 116, 119–129
(Andrea Kupfer Schneider & Christopher Honeyman eds., 2017)

***
Negotiating Through Email: Seven Major Challenges
We now move on to delineate seven areas in which interacting via email affects elements or
dynamics of negotiation. . . . These areas are:
1.More contentious, and less cooperative, process
2.Fewer, or less, integrative outcomes
3.Diminished trust
4.Increased attribution and increased misinterpretation
5.Diminished privacy
6.Diminished negotiator focus
7.Diminished negotiator commitment and investment
1.More Contentious, and Less Cooperative, Process
In online communication, parties tend to be even less inhibited than in face-to-face
communication, due to physical distance, reduced social presence, reduced accountability, and a
sense of anonymity. The lack of social cues causes people to act more contentiously than they do
in face-to-face
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encounters, resulting in more frequent occurrences of swearing, name calling, insults, and
hostile behavior. E-negotiators are more likely to threaten and issue ultimatums; to lie or deceive;
to confront each other negatively; and to engage in flaming.
Another media effect, deriving from email negotiation’s lack of synchronicity, involves what
Anne Marie Bülow has dubbed a “double monologue” style of interaction: parties cherry-pick
pieces of the conversation that they wish to relate to, ignoring others; they relate to these issues in
long, argumentative statements. One result is that communicating through email, negotiators tend
to work simultaneously to persuade each other that they are right, rather than explore ways to work
together. This precludes questioning, so less information is shared. It also precludes uptake . . . so
information the other has shared might not be discussed, clarified and expanded. Finally, to the
extent that queries are used, they tend to be short and specific—extracting specific information
but not opening the door to other information. As a result, one might extract a factual detail from
one’s counterpart, but not the interest underlying it.
All the above can easily result in a lack of process cooperation, as parties focus on the person
rather than on the problem, and as they do so, the potential for effective information-sharing
decreases. Parties may not elicit, or may ignore, important information the other has conveyed, as
well as relational cues. The use of email may, therefore, accentuate competitive behavior in
negotiations. Not only do parties to email negotiation act uncooperatively—they feel justified in
choosing this pattern of behavior. . . .
***
2.Fewer, or Less, Integrative Outcomes
. . .[I]nformation shared in email negotiations is likely to be constrained, analytical, and
contentious. Even if process cooperation devolves no further, this information is hard to work
with, which might explain an email negotiator’s reduced accuracy in judging the other party’s
interests. Such reduced accuracy would reduce negotiators’ ability to accurately assess differential
preferences and identify potential joint gains. . . .
Indeed, many experiments measuring these two elements—process cooperation and
integrative outcomes—illustrate significant challenges. First, e-negotiation appears to entail lower
rates of process cooperation, and lower rates of integrative outcomes, when compared to face-to-
face negotiation. Second, in email negotiation the potential for impasse appears to be greater than
in face-to-face negotiation. . . . Recent writing on this issue has
160
suggested that negotiator orientation towards cooperation or competition determines whether
the outcome will be integrative far more than the communication channel affects this issue. People
with cooperative orientations will generally be able to convey and implement this despite any
challenges that constraining communication channels pose to them.
***
3.Diminished Degree of Inter-Party Trust
. . . Communicating via email, negotiators must cope with threats to trust that are inherent in
the medium and in its use. Email negotiators trust their counterparts less than negotiators in similar
face to-face interactions, at all stages of the process. Before the process’s inception, e-negotiators
report a comparatively low level of trust in their opposite. This low trust-level persists throughout
the course of the negotiation, resulting in diminished process cooperation and information sharing.
Even after reaching deals with their opposites, e-negotiators trust their opposites less than
participants in face-to-face negotiations, manifesting in lower degrees of desire for future
interaction with them. Why do people distrust each other online—or, more to the point, what is it
they are worried about? It may be that they are specifically concerned about intentional deception.
There is little research available on lying in e-negotiation, although it has been suggested that people
may have more tendency to act deceptively when communicating through lean media. This gives
cause for concern, given that we are considerably less skilled in intuitively detecting deception
online than we are in face-to-face settings; while more deliberate methods for picking up on textual
cues are being developed, a great deal of technical sophistication is required to successfully conduct
such analysis in the course of a real-life-negotiation. To compound the issue further, research has
shown that e-negotiators are more likely to suspect their opposite of lying, even when no actual
deception has taken place. As negotiators, then, we are suspicious of our counterpart’s honesty—
but our suspicions rarely target the true liars out there. Given that in lean media we tend to react
strongly in retaliation to perceived lying, we may damage a relationship irreparably over an
erroneous judgment—or our counterpart may do so, over their judgment of our own veracity.
***
4.Increased Attribution and Increased Misinterpretation
Communicating through lean media increases the tendency toward the fundamental
attribution error: parties perceive negative actions or statements on their opposite’s part and
interpret these as outgrowth of the other’s
161
negative intentions and character—rather than as unintended results of circumstance.
Reduced social presence and few contextual cues lend a sense of distance and vagueness to the
interaction. People tend to overestimate the degree to which they communicate clearly over email.
Subtle elements of communication, such as sarcasm or humor, are particularly vulnerable to such
overconfidence. The media richness element of interactivity compounds this: E-negotiators ask
fewer clarifying questions than face-to-face negotiators—leaving more room for assumptions to
form and take root. Attribution dynamics will cause these assumptions to tend toward the negative.
Analysis of failed email negotiations shows that they tend to include unclear messages, irrelevant
points, and long general statements, each of which provides ample breeding ground for attribution.
***
5.Diminished Privacy
Maintaining privacy in a negotiation process is never an easy task. In face-to-face negotiation,
parties can, and do, share information about the negotiation with their friends, families and
colleagues, and occasionally with wider circles. However, parties can, at least, meet in a private
setting, close a door on the world, or lower their voices—eliminating real-time “sharing.” In email
negotiation, by contrast, you never know who is “in the room” with you. Your opposite may have
showed your email to their boss, their colleagues or your competition, before responding to you.
The messages you transmit are forever archived somewhere beyond your control. The information
you share might reach people with whom you had no wish to share it. Your counterpart doesn’t
have to be malevolent in order for this to happen. It might be you who unintentionally clicks “reply
all” instead of “reply,” sending your private message into a public domain!
***
6.Diminished Party Focus
Communicating via email, negotiators are likely to suffer media-related effects including
confusion, low cognitive retention of previous messages, and diminished concentration. This is
due to several factors, including time passage between information exchanges, the tendency to
answer emails in spurts and sections rather than finding the time to write full messages, and the
tendency to answer emails in less-than optimal surroundings and circumstances. In addition, email
is often not something we train our full attention on, but rather something we do as part of our
media multitasking. We check our email as we surf the web, and we surf the web as we read or
162
reply to our email—perhaps holding in-person or phone conversations at the same time.
In general, research suggests that in the digital age, human attention span is decreasing. The
explanation that we are now “multitasking” provides no relief, given the research indicating that
we are not as good at multitasking as some of us like to think we are. Heavy multitaskers suffer a
range of shortcomings as opposed to “focusers,” many of which are pertinent to negotiation: they
are not good at filtering out irrelevant information, and are easily distracted. They tend to have low
detail recall, and despite their tendency to switch between tasks rapidly, they are not skilled at this,
as their brain is always somewhat focused on the task they are not doing. Negotiators suffering
from any of these, due to their multitasking tendency, work surroundings, or email-management
habits, might be confused and unfocused. So, too, might be negotiators communicating via
smartphone in noisy or crowded environments without taking care to consider the effects their
surroundings may have on their capacity to focus. In particular, the multi-screen environment
presented by many home, work, and entertainment venues primes our brains to latch onto new
stimuli. Negotiators who multitask while they are negotiating, in the form of reading messages on
a smartphone while negotiating face-to-face, have been found to achieve lower outcomes. Without
social norms holding us back from reading that message that just came in, we are much more likely
to allow ourselves to let attention slip in this way.
***
7.Diminished Party Commitment and Investment
Parties to email negotiation might be less motivated than face-to-face negotiators. They have
not displayed the minimum commitment of getting up, getting dressed and coming to the table;
indeed, they might not have any sunk costs at all. Smartphones have compounded this issue by
reducing even the value of the time invested in writing the email; people can now do this during
low-value time—while commuting, waiting for someone to show up, during lunch, etc. Email
allows people to easily initiate low-investment “shot in the dark” approaches. This might partially
explain reports of higher impasse rates in email negotiation, as well as the phenomenon of email
negotiations evaporating, with one party simply dropping out of the conversation.
———————

163
POINTS FOR DISCUSSION

1.Professor Ebner points to seven areas in which email negatively impacts negotiation dynamics. Can
you describe how a few of these areas might create opportunities?

2.Professor Ebner describes email as a “constrained, analytical, and contentious” form of

communication. Newer platforms, such as Slack and Microsoft Teams, create a more synchronous feel to
text-based communication and use short and informal messaging. Do you think this counteracts the
diminishment of interparty cooperation aspect of email?

3.In Chapter 6, Professor Michael Green explored the role of Internet platforms in creating the ability
to gather and exchange information without sharing or disclosing information about one’s demographics.
Michael Green, Negotiating While Black, in THE NEGOTIATOR’S DESK REFERENCE (Andrea Kupfer Schneider
& Christopher Honeyman eds., 2017). How might individuals use technology facilitated communication to
combat biases? How might these platforms encourage marginalized or perceived lower-status individuals to
participate more? Increasingly, email platforms and apps include profile pictures, names, and associated
positions or titles. How might these newer features reintroduce social context cues leading to implicit bias?

4.Professor Ebner discusses the increased multitasking that stems from the ubiquitous use and access
of email on smartphones. Professor Lauren Newell points to research demonstrating that the digital
generation, individuals who grew up using technology on a regular basis, has lower attention control than
older generations and recommends lawyers take technology breaks and practice meditation to overcome this.
Lauren A. Newell, Reclaiming Attention in the Digital Generation Negotiator, in 1 THE NEGOTIATOR’S DESK
REFERENCE 201 (Andrea Kupfer Schneider & Christopher Honeyman eds., 2017). How might you
counteract this decrease in party focus?

5.To what extent might generational differences among the negotiators amplify or diminish the
challenges and opportunities identified by the authors? Nikola Simkova and Zdenek Smutny argue that
companies should choose a mode of communication for business-to-business negotiations based on who is
negotiating. They found that millennials prefer computer-assisted platforms. Nikola Simkova & Zdenek
Smutny, Comparison of Unassisted and Smart Assisted Negotiation, in B2B RELATIONSHIPS FROM THE
PERSPECTIVE OF GENERATION Y, 10 Info. 263 (2019).

2.Negotiating Via Video Conference

Many people mistakenly believe that video conferencing solves the complications of email
because, unlike email, it is a synchronous mode of communication. In the following excerpt,
however, Professor Noam Ebner describes a number of issues that arise for negotiations
conducted via
164
videoconference. Below he identifies three trust-related challenges that videoconferencing might
pose to a negotiator.

NOAM EBNER, NEGOTIATION VIA VIDEOCONFERENCING

in THE NEGOTIATOR’S DESK REFERENCE, 155, 164–66
(Andrea Kupfer Schneider & Christopher Honeyman eds., 2017)

***
Video restores “otherness”: Video reintroduces issues into the negotiation process, whose
effects were diminished by text-based communication: race, gender, stereotypes and more. The
salience of these elements is heightened once again by parties’ visual availability to one another.
Some of their effects include challenges to trust—ranging from the challenge of creating quick
identification-based trust with a counterpart who is very different from you in appearance to the
bigger-picture dynamics of in-group/out-group stereotyping. In videoconferencing, these issues
may turn out to be even more salient than in face-to-face settings! The side-by-side portrayal of
both participants’ videostreams in videoconferencing settings results in both of them being highly
visible to each other concurrently, whereas in face-to-face settings, you see the other—but, for the
most part, you do not look at yourself. This may serve to bring differences to the forefront of the
subconscious identification process.

Negotiation Nugget

For six tips on effectively negotiating via videoconference platforms, see https://youtu.
be/mi1uOo5QAKg

***
Technology and trust: At the time of writing, technological mishaps remain fairly common
in videoconferencing. Screens freeze, video or audio sometimes cut out, audio/video lag occurs,
and more. Technological mishaps often have trust-related effects. . . . [Y]ou might begin to feel
annoyed by [a counterpart complaining they can’t hear you]. After all, your equipment and
surroundings are all fine; there’s something going on, on your counterpart’s side. Why can’t your
counterpart buy a better phone? Why
165
can’t they stay put in a place with good cell reception, instead of moving around all the time?
Are they showing you a lack of respect, by doing other things as you converse? Might they be doing
this on purpose, to throw you off your game? Either way, they are being unprofessional and
perhaps contentious. Should you really roll the dice on reaching a deal and working with them?

Note

Three kinds of trust are defined in Chapter 2 Section E: calculus-based trust, knowledge-based
trust, and identity-based trust.

. . . When this occurs, judgmental biases such as the false attribution error are quick to kick
in—and these can easily undermine trust.
***
I trust you as far as I can see you: In videoconferencing-based negotiation, we can see our
counterpart; however, our view is limited to a very particular box, and from a single perspective.
Quite naturally, we wonder what is going on outside of that box. Is something else attracting our
counterpart’s attention? Is the entire setting congruent with what we see, or might our counterpart
be putting on a show? Is there anyone else in the room, listening in, without our counterpart letting
us know?

Negotiation Nugget

In the Netflix series, Tiger King, two parties are on the telephone with a mediator where,
unbeknownst to the mediator (or opposing party), an unidentified individual is covertly listening
in on the phone call and interrupts the discussion. This breach of trust and confidentiality
 immediately ended the call and any chance of resolving the dispute. See https://www.mediate.
com/articles/fisher-mediation-tiger-king.cfm.

These lines of thought are often triggered by other issues . . .—such as technical limitations
and misinterpretation of body language. . . . [T]hese thoughts often take on the flavor of suspicion,
an initial level of distrust. Suspicion presents a fertile breeding ground for false attribution error—
with its detrimental effects on trust.
———————

POINTS FOR DISCUSSION

3. In the above excerpt, Professor Ebner argues that trust between negotiators is negatively
impacted when there are “technology mishaps.” He writes, “While there is no sure-fire
way around these challenges, you can preempt technical mishaps proactively; in fact, take
leadership in this area. In a study on online
166
4. mediators, mediators’ expertise with the medium, and ability to troubleshoot, were found
to be trust-generating in parties; a similarly positive effect might occur in negotiation. Take
the time to familiarize yourself with the ins-and-outs of a platform, so you can guide others
experiencing trouble. Another way to demonstrate leadership and savvy as well as pre-
empting some of the attribution effects discussed above, is by recommending that you
decide ahead of time on a backup communication channel—a different
videoconferencing platform, or a phone call conversation.” Noam Ebner, Negotiation via
Videoconferencing, in 1 The NEGOTIATOR’S DESK REFERENCE 165 (Chris Honeyman &
Andrea Kupfer Schneider eds., 2017).

2.While it is prudent to familiarize yourself with the technology platforms before a negotiation, it may
also be ethically required. According to MRPC Rule 1.1, Comment 8, lawyers must demonstrate competence
by not only staying abreast of changes in the law, but by understanding the risks and benefits of associated
technology as well.

Negotiation Nugget

For an updated list of states that have adopted the technology competency duty, see LawSite
Tech https://www.lawsitesblog.com/tech-competence.

3.How might technologies used as a communication intermediary provide better client protection in
lawyer-as-settlor situations? The increasing use of technology as a means of negotiating online presents
interesting opportunities for greater scrutiny and regulation.

4.The use of technology as a communication conduit is sometimes referred to as the “fourth party,” a
term coined by Ethan Katsh and Janet Rifkin to describe the impact technology has on the facilitation of
dispute resolution processes such as mediation where a third-party neutral normally facilitates the
communication among disputing parties. Orna Rabinovich-Einy and Ethan Katsh describe different
examples where technology increasingly plays a role as a fourth party to facilitate the negotiation beyond
simply serving as a conduit for communication.
 The introduction of technology into the design of the process in the form of the
technological ‘fourth party’ has both generated completely new types of processes unimaginable
in the face-to-face era and separated some familiar dispute resolution processes from qualities
and traits previously considered significant, if not essential, to their design and operation. A clear
example of a new process is the emergence of automated and technology-assisted
negotiation/mediation approaches, which include problem identification processes (eBay),
mechanisms for matching problems and solutions (SquareTrade), automated negotiation support
systems (SmartSettle) and blind bidding tools (CyberSettle). These processes escape previously
accepted clear-cut distinctions between direct negotiation and third-party dispute resolution,
giving rise
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to another sui generis category in which the ‘fourth party’ displaces the third party. These
applications have been employed mainly in relatively simple disputes but can be expected to
evolve and play a useful role and be a force for change in the managing of highly complex disputes.

Orna Rabinovich-Einy & Ethan Katsh, Digital Justice: Reshaping Boundaries in an Online Dispute Resolution
Environment, 1 Int’l J. of Online Disp. Resol. 5, 32 (2014).

B.TECHNOLOGY AND DATA-DRIVEN DECISION-MAKING

In 2019, Professors Noam Ebner and Alyson Carrel implored the dispute resolution field to
broaden their understanding of technology and explore the myriad ways in which technology can
enhance, supplement, and assist mediators beyond simply serving as a conduit for
communication. Alyson Carrel & Noam Ebner, Mind the Gap, 2019 J. Disp. Resol. 1, 1 (2019).
Negotiators, too, should broaden their understanding and use of technology. Technology can
provide a major assist to negotiation by facilitating data collection and analysis to inform decision-
making processes. Because big data is increasingly informing decision-making in other professions,
Ed Walters argues that lawyers may soon find they have a duty to utilize data when advising clients
about litigation and settlement options. He writes:

Negotiation Nugget

Professor Carrel describes a myriad of ways in which technology such as litigation analytics and
multi-party secure computation can innovate negotiation, see https://www.
youtube.com/watch?v=6BTG4U16ZI4.

Law firms are looking at litigation analytics more than ever to analyze the merits of
arguments and litigation strategies—in no small part because the tools of analysis are
improving quickly. For example: Tools from the recently launched Lexis Analytics and
from Docket Alarm give a deeper look than ever at the strategies, judges, and law firms
that help firms to understand litigation outcomes. . . . Clients need better information to
make strategic decisions about litigation, and they are becoming increasingly
sophisticated about pricing risk. In addition, litigation financing companies will have
hundreds of millions of dollars at stake, so they will demand that firms are using analytics
to understand the
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 risks at trial. In addition to these gains, lawyers have an increasing capacity to understand
how individual judges are likely to rule in a case or whether certain motions are likely to
be granted. Today these tools are mostly descriptive; that is, they explain what has
happened in similar cases in the past. Future tools will be more predictive, describing
what is likely to happen in a particular case in the future. Lawyers have new probabilistic
tools to analyze whether their clients are likely to prevail at trial, but the rules do not give
clear guidance about how they should use them and what should be considered frivolous
under the Model Rules. When a lawyer receives a settlement offer that is in the ninety-
first percentile of settlements in similar cases, does she have an obligation to recommend
settlement to a client? What if the chances of winning at trial are 26%? Does that increase
the obligation to settle a case?

Digging Deeper

Ed Walters poses the question, “In a world of data analytics . . ., will it be malpractice to take to
trial a case, in the presence of a settlement offer, if you can know from the data that the settlement
offer is 40% higher than . . . the mean or median of settlements accepted in similar cases?” He
explores this question in the video posted here: https://vimeo.com/279258224.

Ed Walters, The Model Rules of Autonomous Conduct: Ethical Responsibilities of Lawyers and Artificial
Intelligence, 35 GA. ST. U. L. REV. 1073, 1083–84 (2019). In this section, we explore the use of data-
analytics and algorithms by sharing the following excerpt in which Professor Jean Sternlight
identifies the pros and cons of using data analytics to make negotiation decisions.

JEAN R. STERNLIGHT, POURING A LITTLE PSYCHOLOGICAL COLD WATER ON ONLINE

DISPUTE RESOLUTION
2020 J. Disp. Resol. 1, 24–26 (2020)

***
[T]he psychology of judgment and decision-making reveals that computers have potential
strengths in aiding disputants to reach negotiated solutions. First, to the extent disputants could
benefit from being provided with more and better data, computers can be quite helpful. Computers
are
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adept at both collecting and distributing data that can potentially help disputants see that they
are being impacted by . . . various biases and heuristics . . . . For example, one reason disputes can
be difficult to resolve is that both sides may be overly optimistic as to their chance of success in
court and thus unwilling to compromise in a settlement. A computer could potentially present data
to both sides regarding jury verdicts or settlements in comparable cases, and thus bring parties
closer to resolution. Second, a computer could help disputants evaluate their options more
rationally, moving them away from overreliance on emotion, sunk costs, anchoring, or
miscalculations as to the value of future benefit or costs. . . .
Computers can also potentially help disputants reject “bad” settlements that do not serve their
best interests. Sometimes, rather than block a “rational” settlement that some might say ought to
occur, our human decision making and judgment heuristics may cause us to enter agreements we
should reject. For example, our over-optimism, our fears, our desire to be liked, or our liking of
others may cause us to accept settlement proposals that are not helpful. Computers, by presenting
data, could potentially save disputants from this fate by helping them resist proposed settlements
that do not serve their interests.
However, while it seems clear that computers and [Online Dispute Resolution]can potentially
help in all the ways outlined above, I also believe that humans may often be better than computers
at helping fellow humans deal with judgment and decision-making issues in negotiations. The mere
provision of data will often fail to change peoples’ minds precisely because human brains do not
process data as a computer would. Rather, people are very skilled at interpreting new data in the
way most favorable to them. So, even if a computer provides data on average settlements or jury
verdicts, a plaintiff might tell herself that her broken leg was worse than the average broken leg,
that she is more likeable than most plaintiffs, that defendant is less likeable than most defendants,
and so on. Or, a defendant similarly may tell herself that the plaintiff’s claim is weaker than the
average claim. Also, if a disputant is impacted by such phenomena as anchoring, sunk costs, or
framing, the mere presentation of data may not pull them away from their biased interpretation.
Unlike computers, humans care how information is presented, and by whom.
Thus, it may well be that human mediators, lawyers, or friends are more effective than
computers in helping humans deal with their emotions and other judgment and decision-making
issues. It turns out that humans can be very talented at helping other humans make judgments and
important
170
decisions. For example, a human who is good at reflective listening can potentially defuse
anger in a way a computer might not. Or, a human can help another human take a break or refocus
or see that their tentative decision is fueled more by emotion than logic. A person (mediator or
attorney or friend) who is trusted and perceived to be an expert can clearly and persuasively convey
information or data to the disputants. If a trusted person conveys the very same information that
the disputant might have gleaned from a computer, I believe the odds are greater that the
information from the human source will better help dislodge a disputant from his or her
unreasonable position.
Using their communication skills, people can listen to find out disputants’ concerns. They can
build rapport, not only through their words, but also by using body language and facial expressions.
With the help of this rapport, they can build trust, and thus become quite influential. They can tell
persuasive stories. They can use apt metaphors. In all of these ways and more, people can connect
effectively with other people to help them make judgments and decisions. Just reading information
in a chart, relevant though it may be, is not always going to be as useful as more human modes of
interaction.
———————

POINTS FOR DISCUSSION

1.Professor Sternlight points to the importance of lawyers using skills such as “reflective listening” to
help clients analyze the totality of the situation, instead of focusing exclusively on data, and recognize the
emotions and cognitive biases that might impact their decision-making. What other negotiation skills might
a lawyer use to help a client use data analytics most effectively?
 2.Professor Michael Moffitt, concerned that data analytics might create a false sense of certainty, argues
a slightly different point. He says,

A client who is told simply that his case is ‘worth $1,500,000’ has no sense of the shape of
the distribution curve leading to this probabilistic conclusion, and even no sense of the likelihood
of a $0 recovery or some other extreme outcome. A heavily quantitative approach risks
inaccurately suggesting that financial payoffs are the only (or even most important) interest a
client has, or should have, in deciding on a proper course of action. Virtually all clients have
interests that extend beyond monetary terms. Even if it is possible to reduce nonmonetary
interests into monetary valuations (‘achieving certainty this year is worth $100,000 to me’ or ‘not
setting a bad precedent is worth paying double on this
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settlement’), the reduction to a single monetary term risks suggesting false or misleading
equivalents for clients.

Michael Moffitt, Settlement Malpractice, 86 Univ. of Chicago L. Rev. 1825, 1863 (2019). What negotiation skills
might a lawyer use in this situation to help a client use data analytics most effectively?

3.Although data analytics in the context of litigation and judicial decisions is growing in the United
States, France made the controversial decision in 2019 to ban “judicial analytics” altogether. Violators may
face up to five years in prison. Jason Tashea, France Bans Publishing of Judicial Analytics and Prompts Criminal
Penalty, ABA Journal, June 7, 2019. How would one discover whether this prohibition has been violated?

4.Jena McGill and Amy Salyzyn argue that the increased use of data analytics in the law will benefit
society by providing increased transparency into judicial behavior and decision-making. Jena McGill & Amy
Salyzyn, Judging by Numbers: How Will Judicial Analytics Impact the Justice System and Its Stakeholders?, 44 Dal.
L.J. (Forthcoming 2021).

5.Orna Rabinovich-Einy and Ethan Katsh detail the shift between private vs public resolution in three
ways: 1) as parties move their private discussions online through a court ODR system, there can be no
privacy expectations, 2) automated decision-making may limit human discretion in the resolution of disputes,
creating a more rules-based system than traditional alternative dispute resolution, but raising concerns about
fairness of automated processes, and 3) providing a data rich monitoring system of processes, neutrals, and
dispute resolution systems design, but cautioning about the intrusion on privacy when doing so. Orna
Rabinovich-Einy & Ethan Katsh, A New Relationship between Public and Private Dispute Resolution: Lessons from
Online Dispute Resolution, 32 Ohio St. J. on Disp. Resol. 695 (2017).

Negotiation Nugget

ODR stands for the umbrella term “Online Dispute Resolution” which generally means the
resolution of online disputes or the resolution of disputes in an online environment.

6.The use of analytics isn’t without its complications. For example, biases can be baked into algorithms
by humans training the systems and using data based on historical or social inequities. Professor Sternlight
warns about the potential negative impact of using data analytics in the realm of adjudication and says,

172
 [I]f the data made available to the computer is flawed or incomplete, or if the algorithm
itself is biased, the computer’s decisions will be faulty. Researchers have found that artificial
intelligence can sometimes bake in biases we would prefer to eliminate. Therefore, it is quite
conceivable that certain algorithmic forms of online dispute resolution could potentially be biased
against classes of disputants on the basis of race, gender, ethnicity, age, or other factors.

Negotiation Nugget

Princeton Professor Ruja Benjamin explores biases in data science through the lens of human
behavior, culture, and social justice, see https://youtu.be/rY8RkET3KC0.

Jean R. Sternlight, Pouring a Little Psychological Cold Water on Online Dispute Resolution, 2020 J. Disp. Resol. 1, 24
(2020). Professor Nancy Welsh sees similar issues in online dispute resolution.

Increasingly, courts, agencies, and repeat litigants (e.g., insurers, manufacturers, employers)
are expressing interest in using ODR to resolve relatively routine, low-dollar disputes. ODR
creates the opportunity for collecting and analyzing substantial amounts of data, which can then
be used to detect problematic patterns. At the same time, the public is increasingly aware of the
dangers presented by involvement with the online world, including the potential for security
breaches, victimization as a result of inaccurate information, and unfairness as a result of biased
algorithms. Consequently, many ODR advocates are calling for ODR procedures to be made
transparent and accountable, with required reporting regarding the number of people using them,
their substantive results, users’ perceptions of the ODR process’s fairness, demographic patterns,
and the results of algorithmic audits.

Nancy Welsh, Dispute Resolution Neutrals’ Ethical Obligation to Support Measured Transparency, 71 Okla. L. Rev.
823, 862–63 (2019).

7.In Chapter 1, we talked about so many cases in litigation being settled through negotiation that it
might be useful to consider them as one, in other words, “litigotiation.” Could it be that we will focus more
on comparisons to other negotiations and settlements than litigated outcomes? In Chapter 3, we discussed
bargaining in the “shadow of the law.” As more data is collected about the negotiation process through
online dispute resolution platforms, how might this change the BATNA analysis?

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INDEX
References are to Pages

—————

A
AATNA, 26, and see alternatives to negotiated settlements
Accommodating style, 4–6
Adversarial style, 37, 40–41, 44–46, 84, 99–111, 116
Alternatives to negotiated settlements (AATNA, BATNA, MLATNA, WATNA), 15, 24–29, 30, 47, 57–64, 67, 73, 83–84, 104–05,
108, 158, 172
Anchoring, 91–93, 169
Apologies, 96–99, 104
Aspirational thinking, 30, 37, 63–64, 92
Asynchronous communication, 158–63
Attribution bias, 90–91, 141, 160–61, 165–66

B
BATNA, 15, 24–29, 30, 47, 57–64, 67, 73, 83–84, 104–05, 108, 158, 172
Bias, see cognitive bias and implicit bias
Brainstorming, 10, 66, 84

C
Calculus-based trust, 50–52
Claiming value, see value-claiming approach
Cognitive bias, 37, 57, 61–62, 141, 144–45, 147, 153, 155–56, 163, 165, 169, 170–72
Collaborative style, 5–6, see value-creating approach
Collectivism, 142, 144
Competitive style, 5–6, 71, see value-claiming approach
Compromise style, 4–6
Creating value, see value-creating approach
Culture, 21, 141–45, 172
Curiosity, 9–11, 76

D
Data-analytics, 26, 60, 167–68, 170–72
Decision-trees, 26, 60
Distributive approach, see value-claiming approach

E
Egalitarian, 142, 144
Egocentric bias, 61–62
Email, 71, 153–55, 158–63
Emotions, 8–10, 13–14, 20, 43, 66–70, 169–70
Empathy, 8–10, 43, 117, 150

F
Framing, 61, 104, 105, 108

G
Gender, 145–50, 156, 164, 172

H
Haggling, 85–86
Hard-bargaining, 99, 106–08
High-context culture, 142, 144
 I
Identity-based trust, 51–52, 164
Impasse, 30, 53, 62–63, 90, 103, 106–08, 159, 162
Implicit bias, 141, 144–45, 153, 155–56, 163, 171–72
Individualist, 142, 144
Integrative approach, see value-creating approach
Interests, 1–2, 8, 15–22, 27, 30, 32, 38, 41–47, 57, 59, 64–65, 67–69, 71–75, 84–87, 93–94, 104–05, 113–15, 121–23, 144, 152, 154–55,
158–59, 169–70
Interpersonal, 1, 3, 12, 54, 71, 102
Intersectionality, 143

J
Justification, 73, 89–90

K
Knowledge-based trust, 51

174

L
Listening, 9, 12–14, 67, 73, 75–76, 170
Litigotiation, 1, 172
Logrolling, 32, 86
Looping, 9, 14
Loss aversion, 61, 88
Low-context culture, 142, 144
Lying, 57, 119–32, 160

M
Mediations, 1, 99, 156, 166
Meditation, see mindfulness
Mindfulness, 7, 163
Misrepresentation, 78, 121, 124–25, 128–30, 132–33, 135–38
MLATNA, 26, and see alternatives to negotiated settlements
Multicultural, 142

O
Objective criteria, 22–24, 57, 64, 67, 84, 95, 152
Online dispute resolution (ODR), 171–72
Open-ended questions, 73, 82
Options, 5, 29, 31, 37, 57, 64–66, 73, 81, 84, 86, 167, 169
Otherness, 164

P
Packages, 75, 86
Pareto-optimal, 31, 65–66
Perspective-taking, 9, 27, 43, 75
Positional style, see adversarial style
Positions, 8–9, 15–19
Power, 28–29, 80, 83, 102, 105, 108, 109, 155
Problem-solving approach, 5, 29, 38–39, 41–46, 81, 87
Psychology, 61–64, 88–89, 102–03, 168–79
Puffery, 121–22, 124, 128

R
Race, 150–56, 164, 172
Reframing, see framing
Religion, 145
Reputations, 9–11, 48–54, 129, 131
Reservation point, 25, 34–37, 57–60, 62–64, 83

S
Self-serving bias, 61
Separating person from the problem, 54
Stereotypes, 141–42, 144–45, 147, 149, 150, 154, 164
Subculture, 145
Synchronous communication, 163–64

T
Thomas-Kilmann Conflict Mode Instrument, 6–7
Threats, 102, 104–05, 107, 138, 159–60
Trust, 5–6, 11–13, 48–52, 74, 120, 138, 151, 160, 164–66, 170
Truthfulness, 107, 119–23, 125, 127–30, 136

V
Value-claiming, 8–10, 13, 30–38, 40, 42–47, 52–54, 66, 71, 99–108, 159–60
Value-creating, 42–44, 46, 66, 81, 84, 93, 95, 103, 108, 116
Videoconferencing, 158, 164–66

W
WATNA, 26, and see alternatives to negotiated settlements

Z
Zero-sum, 37, 39, 41, 151
Zone of Potential Agreement/Zone of Possible Agreement (ZOPA), 35–37, 59, 62, 66, 90