A Primer on Successful Negotiation

1. Introduction

2. Positional Bargaining - Negotiation Tactics

   A. Hardball Tactics

   B. Cooperative vs. Competitive Bargainers

3. Interest-Based Bargaining - Principled Negotiation

   A. Getting to YES

   B. The Critique of Getting to YES

4. Integrating Positional and Interest-Based Bargaining

   A. Game Theory

   B. Overcoming Barriers to Settlement

5. Successful Bargaining - Lessons from the Field of Mediation

   A. Empowerment and Recognition

   B. Conflict as Opportunity

   Bibliography

   I. Introduction

   Negotiation has a bad name in our culture. Recall one of the opening scenes in the recent film "Air Force One," in which the President of the United States, played by Harrison Ford, castigates himself and other foreign policy makers for their willingness to negotiate with terrorists and vows never to negotiate again. Or, recall the hero of the science fiction film "The Fifth Element," played by Bruce Willis, who offers to negotiate with one of the villainous Mangalors who have captured the control room of the spaceship and then, when face to face with the chief Mangalor, quickly shoots him squarely between the eyes, while an impressed colleague asks: "where did he learn to negotiate like that?"

   In these films, and in much of our culture, negotiation is treated as an activity suitable only for unprincipled wimps ("Air Force One") or indecisive fools ("The Fifth Element"). Moral: real men and women don't negotiate.

   Yet the reality is that we negotiate all the time. If we have young children, we are engaged in negotiation from the minute they wake up -- over such weighty subjects as what they are going to eat for breakfast or wear to school. If we drive to work, we are "negotiating" the traffic to get there. If we are married or in a domestic partnership, negotiation is how we decide what videos to rent and when the refrigerator needs cleaning. Virtually every aspect of our lives involves negotiation -- even negotiations with ourselves (over what we will eat, or not eat, how we will spend our time, etc.)

   In the workplace, negotiation is likewise ubiquitous. Almost every aspect of workplace activity requires coordination and teamwork, and negotiation lies at the core of those activities. A company's relationship with its employees is the product of a series of negotiations over the terms and conditions of employment and other issues relating to the employee's responsibilities. The satisfactory resolution of those issues depends on the ability of both management and employees to negotiate productively. Thus, effective negotiation can make the difference between a successful company and one that is not.

   What is effective negotiation? Lawyers and social scientists who have studied negotiation behavior offer several answers to this question, and their answers have evolved rapidly in the last twenty-five years. Sections II - IV below briefly describe that evolution, and Section V suggests some future directions.

   II. Positional Bargaining - Negotiation Tactics

   The early 1980s represent a watershed in the literature of negotiation. In 1981, Roger Fisher and William Ury published Getting to YES: Negotiating Agreement Without Giving In, arguably the most influential book ever written about negotiation. Getting to YES, which has been translated into 18 languages and has guided the training offered to world leaders through the Program on Negotiation at Harvard Law School, offers a vision of negotiation as a principled activity in which the participants can each be made better off.

   However, prior to the publication of Getting to YES, negotiation was typically viewed as an activity in which two or more parties each vied for advantage at the other's expense. The best negotiators were those who succeeded in obtaining the largest slice of the pie, with little attention paid to whether the pie could be expanded in some way.

   A. Hardball Tactics

   Typical of the literature of the pre-Getting to YES era is the advice given to legal services lawyers by Michael Meltsner and P.G. Schrag in their book Public Interest Advocacy: Materials for Clinical Legal Education. Their suggestions for negotiators combine such common sense advice as thorough preparation with a set of techniques designed to manipulate, deceive, or intimidate the opponent. The unspoken assumption in these suggestions is that the opponent is willing to take advantage of the negotiator -- fairly or unfairly -- and therefore success requires using competitive negotiation techniques, and using them more effectively than the opponent. The following is a short list of the techniques Meltsner and Schrag recommend:

   Arrange to negotiate on your own turf.

   Balance or slightly outnumber the other side.

   Time the negotiations to advantage.

   Lock yourself in.

   Designate one of your demands a "precondition."

   When it is in your interest, make the other side tender the first offer.

   Make your first demand very high.

   Place your major demands at the beginning of the agenda.

   Make the other side make the first compromise.

   Use two negotiators who play different roles.

   Be tough especially against a patsy.

   Appear irrational where it seems helpful.

   Raise some of your demands as the negotiations progress.

   Claim that you do not have authority to compromise.

   Many of these techniques are as repugnant as they are common. Like the behavior all too many of us experience when we buy a car in an auto showroom, negotiation tactics of this kind involve treating the other party in a negotiation as a de-personalized enemy. They reflect an individualistic world view in which negotiation is merely the more civilized version of an otherwise vicious competitive struggle for advantage.

   One of the hallmarks of this style of negotiation is the manipulation of the other party's point of view. For example, lecturers on the subject of negotiation like to tell the story of a mistake made by organizers of the presidential campaign of Theodore Roosevelt who printed up thousands of copies of a campaign flyer with a photograph of Roosevelt lifted from the popular press. Unfortunately, no one had asked the photographer for permission to use the photo. The campaigners anticipated having to pay the...