Negotiations

• 1. prepare
• 2. discuss
• 3. propose
• 4. bargain (if, then)

Look for interests/needs, options, and alternative (including BATNA) of the negotiator.

Alternatives and BATNAs

batna = best alternative to negotiated agreement

Look for interests/needs, options, and alternative (including BATNA) of the other negotiator.

The Opponent's alternatives and BATNAS

Look for common ground, and strategize. Remember that the interests/needs of the other party must be satisfied, before an agreement can be reached.

Use open-ended questions and probing follow-up questions.

This is done to inform the other party, to persuade the other party and (not stated in the book) to satisfy the need to be heard.

The one making the first offer reveals information, and shapes the other party’s expectations about the range of potential possible agreements.

The counter offer can shape the expectations of the other party. An offer that is too aggressive or too generous can be problematic. The counter offer can allow reframing.

An agreement should leave both parties better off than they would have been without the agreement. If not, someone has failed. Agreements should be memorialized.

The most frequent cause of an impasse is that better alternatives (BATNAs) exist outside of the agreement. Poor negotiating skill is the next most frequent cause of an impasse.

The negotiators attempt to make both parties better off. Here the negotiators attempt to meet the needs (interests) of each party.

The negotiators attempt to capture gains at the expense of the other party. This is also referred to as “zero-sum” or “constant-sum” negotiation, and is a form of “distributive” bargaining.

The distance between the reservation point (RPs) (“walk away points—BATNAs) of the two parties

Efforts at persuasion are to satisfy one or both of two goals:

(1) to shift the bargaining zone to the advantage of the negotiator, either by convincing the opponent that this RP is worse than he believed before beginning, or that the negotiator’s RP is better than previously believed; and

(2) to establish an objection—and therefore "fair” – method of agreeing on a sale price that falls within the bargaining zone.

Surplus allocation effectively divides the cooperative surplus that the parties create by reaching an agreement.

Integrative bargaining requires the parties to redefine the negotiation’s subject matter in a way that benefits one party more than it costs the other

Information asymmetry-the possession by each negotiator of some information that the other does not have. This allows the parties to bluff and lie about their interests and preferences.


Strategic behavior aimed at maximizing the size of the party’s own “slice” of the “pie.” These are claiming tactics, and may result in claiming tactics by the other side, thus pushing up the cost of the agreement.

The basic problem is that the incentives for an agent negotiation on behalf of a party to a dispute may induce behavior that fails to serve the interests of the principal itself.

1. Risk Aversion: Most people will take a sure thing over a gamble, even where the gamble may have a somewhat higher “expected” payoff. The proportion of people who will gamble to avoid a loss is much greater than those who would gamble to realize a gain


2. Loss aversion: In order to avoid what would otherwise be a sure loss, many people will gamble, even if the expected loss from the gamble is larger. Both sides may fight on in a dispute in the hope that they may avoid any losses, even though the continuation of the dispute involves a gamble in which the loss may end up being far greater.

Most decisions concerning the course of litigation involve risk. As a result, litigation decisions are influenced by the risk preferences of the parties, which, in turn, are determined by the character of the decision as a gain or as a loss.

Want certain value as opposed to possible value

Prefer a certain cost to a probabilistic cost with same expected value

predicts that rational negotiators will be risk adverse.

The economic model predicts that litigants will make choices that lead to the greatest expected returns. Generally, a litigant should accept a settlement only when its value exceeds the expected value of continued litigation.

Indifferent between paying certain or uncertain price

a negotiator will be risk adverse when dealing with loss (certain loss v. probalistic loss)

predicts that in the usual case decision makers will exhibit risk seeking tendencies when choosing between certain and probabilistic losses—they will prefer a probabilistic loss to a certain loss when the two have the same expected value.

EX: can pay 50 or can flip a coin and if you lose you pay 100, but if you win you pay nothing

Most people will take the risk

But, if the choice is between taking 50 now or flipping a coin and could get 100, most people would take the 50 now

When framing an argument, show them that it is a gain to them

Frame it so that, you have the known and unknown outcome, and you will frame it so it is beneficial to the other side

Understand – are you presenting this as a gain or a loss

This prediction of prospect theory—that individuals will prefer certain alternatives to risky ones in the realm of gains, but will prefer risky alternatives to certain ones in the realm of losses—is often know as the “framing” effect.

The framing effect implies that when a negotiated agreement would lead to a certain outcome, but the negotiator’s BATNA will lead to a probabilistic outcome (or vice versa), the negotiator’s reservation price will depend on whether he/she views the alternatives as “gains” or as “losses.”

Whether alternatives appear to be gains or losses depend, in turn on the reference point the negotiator relies on when evaluating his alternatives

You give more value to something that you own or is yours

1. Determining whether a bargaining zone exists –that is, whether a mutually beneficial agreement is possible—and identifying the range of possible agreements.

2. Changing the scope of emphasis of the negotiation in a way that makes a transaction mutually beneficial when otherwise there would be no possibility of finding a mutually beneficial agreement, or in a way that makes an agreement even more mutually beneficial than it would otherwise be.

3. Exercising negotiating power to capture some or all of the benefit that the parties will create by reaching an agreement at the expense of the other party.

4. Appealing to procedural or substantive social norms to reach agreement on how to divide the benefits that the parties create by entering into a transaction.

In any negotiation, the maximum amount that a buyer will pay (or the seller will take) for a good, service, or other legal entitlement is called his/her “reservation point” or, if the deal being negotiated is a monetary transaction, his “reservation price” (RP).

If the buyer’s RP is higher than the seller’s RP, the distance between the two points is called the “bargaining zone.” (An agreement for an amount within the zone is superior to no agreement.)

alternatives - outside bargaining zone

options - anything in bargaining zone

1. Alternatives,

2. Preferences

3. Probabilities of Future Events.

4. Risk Preference.

5. Transaction Costs.

6. Value of Time.

7. Effect on Future Opportunities.

Individuals usually obtain better bargaining outcomes if they begin an endeavor with a specific, concrete aspiration rather than a more ambiguous “do your best” aspiration.


a. Negotiators set their aspiration levels at the point where their marginal utility of achieving more from the bargain peaks.

b. Negotiators can create such a peak in the marginal utility they enjoy as a result of achieving more by setting an aspiration level. In other words, the aspiration levels create the peaks.

Risk - don't treat aspiration as RP. you may walk away from a possible deal that would be superior to pursuing your BATNA just b/c the deal terms fail to meet the aspiration level

One approach is to set the aspiration level at the estimate of the opponent’s reservation point. There are problems with this approach:

a. Negotiators are uncertain about their opponent’s precise reservation price. If the level is set too high, impasse may occur, even though BATNA has been exceeded.

b. If both negotiators attempt this strategy, it will be impossible for both to satisfy their aspirations. On or the other fails, or an impasse occurs.

c. If the parties have repeat dealings, it might not be in either’s long-term interests to aspire to capture all of the cooperative surplus. If the other party accepts a deal at the reservation point, and walks away with only minimally satisfaction, the other party may look for other trading partners in the future.

aspiration - highest or lowest legitimate price (you are striving to get this)

goals - somewhere between aspiration and where you're going to end up

A. Find out where you want to go, and why.

B. What you aim for often determines what you get.

1) Your goals set your upper limits.

2) Goals trigger psychological “striving” mechanisms.

3) We are more persuasive when we are committed to achieving some specific purpose. “What convinces is conviction.”

C. Set an optimistic, justifiable target

is different from a bottom line. It is your highest legitimate expectation of what you should achieve.

Humans have a limited capacity for maintaining focus in complex negotiations. Consequently, it is better to focus on goals, rather than bottom lines.

the minimum acceptable level you require to say “yes” in a negotiation.

Over confidence regarding facts – value your facts too much (overly confident that these facts will sway)

Give facts more weight than they should, and that weight shouldn’t be given that much

Take info that is uncertain, and instead of weighing it rationally, you believe that it benefits and supports your argument

Ps are likely to systematically over estimate the value of their claims and Ds are likely to underestimate the value of claims brought against them

“People tend to believe what they want to believe. This observation is a shorthand description of the phenomenon known to students of cognition as self-serving bias. It can be understood more precisely as the tendency to make various judgments in a manner skewed to favor one's own self-interest.”

The “self-serving bias” can result in buyers setting relatively low and sellers setting relatively high reservation prices, thus reducing the size of the bargaining zone or eliminating a bargaining zone that might have existed in the absence of this bias

Problem - set RPs either too high or too low

1. Personal Solutions, such as reeducation.

2. Penalizing bias (e.g., offer of settlement rules).

3. Separating Biased Parties From Decisions (selling the claim, contingency fees, use of third parties).

Throwing out a value for the negotiation to circle around, and then adjusting your RP

People make estimates by starting at an initial “anchor” position, which they adjust to yield a final estimate. Different anchors create different expectations and yield different estimates, and these estimates tend to be biased toward the original anchor. Thus, anchors, like frames, serve to impede rational problem solving and decision-making.

When negotiators bargain about the price of an item, they need to be wary of first offers advanced by their opponents who may use these offers to "anchor" the negotiation around their number, thus subtly limiting the range of bargaining. Anchoring operates especially well when there are few market indicators to help establish an appropriate price or where one has little relevant experience or knowledge

First offer is always a dangerous one, b/c you are transmitting information to the other side

Person who makes the first offer sets the tone

All other things equal, individuals on average tend to prefer an option if it is consistent with the status quo than if it requires a change from the status quo. - prefer things to remain the same than to change

The status quo bias suggests that, all other things being equal, negotiators will prefer their initial endowments over endowments they might hope to receive through exchange, that they will favor deal terms that are consistent with legal default rules, and that they will prefer terms of trade that are conventional for the type of bargain that is at issue.

As is true with framing, evidence of the status quo bias suggests that negotiator choice can depend on the negotiator's particular perception of the status quo.

selective perception - we see only the world we look for

confirmation bias - we give credit to information that agrees with our already formed beliefs and desires

consensus error - we tend to think that others think as we do, and have the same values as we have

Just b/c opposing side said it, it is wrong, worthless, or not valid

A negotiated agreement may be of less value to a negotiator than it would otherwise be merely because his opponent proposed it. This phenomenon –“reactive devaluation”—suggests that in some circumstances transaction that would ordinarily be judged by a negotiator to be more desirable than pursuing his/her BATNA may be judged less desirable than pursuing his BATNA when proposed by the opponent.

This might be caused by the human desire to have what is out of our reach. When a particular agreement comes within a negotiator’s grasp, that agreement might seem less desirable because it is available.

If an opponent has private information about the quality of the negotiation’s subject matter, the negotiator might reasonably reassess that quality if the opponent is suddenly willing to part with the subject matter.

no matter what the other side says, it isn’t going to be a good thing

If the negotiator dislikes the opponent, the negotiator may have a preference that the opponent not get what he/she wants. Consequently, when the opponent reveals what he/she wants by proposing an agreement, the value of the negotiator of reaching an agreement, as opposed to his/her BATNA, declines.

considers how people attribute causal meaning to behavior - When things are happening, you attribute them to the other side, and it is a negative attribute

When others harm us, we are more likely to conclude that “they” are bad people who have acted with malice or indifference

concern the character or personality traits of the actor who has created the negative situation for us

external circumstances that are usually beyond our control of the actor, that is, when we view situational characteristics as critical to an event, we conclude that resulting consequences are beyond the actor’s control

if others do not agree with our view of the world or our view of facts, then they must be misinformed, biased, insensitive, or self interested

approach the problem with clear preferences, evaluate the value of alternatives objectively given their preferences and the information available to them, and reach identical choices between available alternatives regardless of how the choice is presented to them

1. Individuals who make comparisons between alternatives often violate these assumptions of rational choice theory

2. Rational choice theory predicts that the negotiator will set his reservation point by identifying his BATNA and then determine what offer he would have to obtain from his opponent in order to be indifferent between reaching agreement and pursuing BATNA

3. A rational negotiator is risk adverse – they like the sure thing b/c the value is the same

when the value of either is uncertain, rational choice theory implicitly assumes that negotiators will be able to accurately estimate the probability of various possible values

1. Cognitive rules of thumb that are naturally adapted to limited human information-processing capabilities instead of optimal statistical rules

2. Self-Serving Bias – decision makers will make optimistic predictions about the likelihood of future events

3. Overweighting of Salient Information - negotiators are also likely to overestimate the likelihood of an event if that event is particularly salient and its alternatives are not

4. Anchoring and Adjustment

5. Reactive Devaluation - suggests that in some circumstances transactions that would ordinarily be judged by a negotiator to be more desirable than pursuing his BATNA may be judged less desirable than perusing his BATNA when proposed by the opponent

negotiators are also likely to overestimate the likelihood of an event if that event is particularly salient and its alternatives are not

Peoples tend to overestimate the likelihood of events when it is easier to recall or conjure up a mental image of the event and then tend to underestimate the likelihood of events that are less mentally prominent

predicts the decision makers will estimate a higher probability for an event to occur if the event is imagined in greater detail or if all of the ways that the event might come about are enumerated

When people are required to place a value on something they often determine that value cognitively by beginning with a preexisting reference point and then adjusting from that point

This mental approach is consistent with the negotiator’s goal of setting a reservation price precisely such that any offer better than the reservation point is more desirable than not reaching an agreement, and any offer worse than the RP is less desirable than not reaching an agreement, so long as the reference value, or the anchor, is relevant to his reservation price

Opening offers may anchor the opposing side’s expectation sin negotiation and impeded rational decision-making behavior

Looking at interests as opposed to positions

Because human interactions are complex, there are usually potential ways to structure a deal that will benefit the parties more than merely dividing a single asset. Negotiations that take advantage of this potential are referred to as “integrative,” “value creating,” or “problem solving.”

The ideal agreement would benefit both parties without burdening either with any countervailing costs

Integrative bargaining is usually possible even when the parties have opposing interests. That is, the bargaining zone can usually be expanded even if the parties want the same thing.

Integrative negotiation requires only that the parties have different preference structures such that they place a differential value on items that are the subject of the negotiation, even if they want all of the same things.

When parties are able to identify a common interest in negotiations they can expand the cooperative surplus that an agreement would create, because both their reservation prices shift in directions that make reaching agreement more valuable.

Integrative bargaining creates value for the parties jointly, establish a bargaining zone where none would have otherwise existed or expanding a bargaining zone that would have existed anyway. How the negotiators divide the cooperative surplus is a matter of distributive bargaining, not integrative bargaining.

1. Adding to and Subtracting Issues from the Negotiation “Package”

2. Logrolling

3. Avoiding the Fixed-Sum Error

4. Focusing on Ultimate Interests Rather than Superficial Positions

5. Confronting Adverse Selection and Moral Hazard Problems

6. Exploring the Opponent's Interests and Preference: Asking Questions

7. Revealing Interests and Preferences

8. Post-Settlement Settlements

Negotiators expand the bargaining zone by adding or subtracting issues from what they initially perceive to be the negotiation package.

1. Adding an issue will only expand the bargaining zone when that issue is valued more by the buyer than by the seller.

2. Adding issues is an effective strategy when the parties have common interests, just as it is when the parties have opposing interests, but difference in their preference structure.

3. It is often the case that even more value can be created when the negotiators adds more than one issue to a negotiation.

It may be equally useful for negotiators to think about how they can create value by subtracting issues. In general, subtracting issues creates value for the negotiators when a component of the package being negotiated is more valuable to the party that currently posses it than to the other party.

“Logrolling” is a term often used to describe the practice of two or more legislators trading votes on bills that are of little importance to them in return for votes on bills that are very important to them.

Conceptually, logrolling is just a slightly different perspective on the strategy of adding and subtracting issues.

If, then scenario - if you give me this, then I will give you that

It is a mistake to enter negotiations assuming that the other party’s preferences and interests are in complete opposition to their own. Negotiators more susceptible to the fixed-sum error achieve poorer results in bargaining exercises than negotiators who accurately perceive or identify during bargaining interactions that the opponent has a different preference structure.

To be successful at integrative bargaining, then, it is important for negotiators to enter bargaining situations with precisely the opposite assumption: that the opponent probably has either somewhat different preferences or, at a minimum, the same preferences but in a different order of priority.

Look past superficial demands advanced at the bargaining table by both parties, and investigate the more general, or core interests of one party at a relatively low cost to another, thus creating value.

look at interests, not positions

• 1. Security
• 2. Economic Well-Being
• 3. A Sense of Belonging
• 4. Recognition
• 5. Control Over One's Life

Adverse Selection - created from situations where both sides don’t have the same information. EX: sellers usually have more information about the quality of their wares than do potential buyers.

Moral Hazard - The problem of moral hazard arises when the seller’s actions after an agreement has been reached can affect the value of the subject of the negotiation. The solution is to structure an agreement that compensation is dependent upon performance.

don't waste time attempting to persuade the opponent.

Ask "what" questions to understand their positions and the value they place on them

Then ask "why" questions and find out which ones are the most important

Then ask "what if" questions to elicit opponent's opinions about a variety of potential tradeoffs

It is helpful to explicitly describe your underlying interests, and how you value and prioritize potential elements of the negotiation package. Being clear about what you want, why you want it, how you prioritize issues, and the relative value you place on different aspects of the negotiation can encourage your opponent to fall prey to the fixed-sum error and help him to identify the integrative potential of a negotiation.

Once negotiators have agreed on a specific transaction, they continue to brainstorm various other agreements that would adjust the initial agreement or add or subtract issues. The parties agree to abide by the terms of the original agreement, however, unless both agree to revise the agreement based on their further discussions.

1. Differences of Interest

2. Differences in Cost

3. Differences in Predictions About the Future

4. Differences in Risk Preferences

5. Differences in Time Preferences

6. Differences in Attractiveness of Proposed Procedures

• 1. Adverse Selection
• 2. Moral Hazard
• 3. Creating Contingencies/Value

when a bargaining zone is evidence, however, negotiators must agree on a single deal point within the zone in order to consummate an agreement

power is the "ability to act or produce an effect." The critical element of power is the ability to have one's way, either by influencing others to do one's bidding or by gaining their acquiescence to one's action. This necessarily includes the ability to achieve one's ends even in the face of opposition.

ability of the negotiator to convince the opposing party to give her/him what he/she wants even when doing so is incompatible with the opponent’s interests. It is the ability to bend the opponent to your will.

Must be legitimate - if there is knowledge that you will not walk away, then it destroys power

• 1. Personal Power
• 2. Organizational Power
• 3. Information Power
• 4. Expertise
• 5. Moral Power

intelligence, physical strength

“the inherent individual traits that a person brings to a negotiation not directly associated with his or her organizational status. We include things such as a person's intelligence, persistence, courage, physical strength, appearance, celebrity, memory, confidence, awareness, education, interpersonal skills, emotional control, intuition, friendliness, and willingness to take risks.”

finances, resources, connections

by their very nature are hierarchical and interactive (with power typically concentrated at the top and flowing downward), . . . play as large a role in power dynamics as personal power does. . . .They provide financial and human resources that vastly exceed those that can be mustered by isolated individuals.

side that generally has more information generally has more power

The more information that a party has, the more likely it is that he or she can see the context of a given situation clearly and respond accordingly.

“Expertise is one of the most critical and powerful sources of information. Those who are viewed as having mastered an area of knowledge can often influence a proceeding by expressing an opinion about a critical point in contention, often without justifying the basis of their opinion.”

what morally si right and fair under the circumstances should require you to give me more of what I want


“We use the term "moral power" to refer to those instances in which negotiators achieve gains through appeals to fairness or morality. In some instances, moral claims may be the only source of leverage available against those with greater power. Moral appeals seem likely to carry the greatest impact when they employ empathy to persuade opponents to place themselves in one's shoes.”

• 1. Change bargaining zone
• a. Improve your BATNA
• b. Reduce their BATNA

2. Manipulate opponent's perceptions of bargaining zone - can lie about your RP BUT NOT BATNA

• 3. Commitment - commit to not conceding much to them and you not retracting
• a. Physical Impossiblities - physically can't negotiate anymore, it's your turn now
• b. create a cost and accept less than what you are demanding
• c. appear irrational - just walk away

• 4. Patience - Demonstrate the ability to wait longer for concessions than the opponent is willing to wait
• a. costs of delay

Distributive bargaining is necessary in any bargaining situation in which the bargaining zone is wider than a single point, but if there is a competitive and liquid market for item in question then it is unnecessary (EX: purchaw of stock)

2 ways:

1. use power to force opponents to concede by threatening to break off negotiations without reaching agreement if the opponent does not yield (has to be credible)

2. can rely on social norms that govern what constitutes fair division

• 1. resistance from those with less power
• 2. those with less power will scuttle agreements perceived to be demeaning
• 3. those with less power may feel provoked to shore up their positions by making threats, adopting stubborm positions, or using punitive tactics
• 4. weaker parties may be too suspicious of stronger parties' intentions

• 1. establishment credibility
• 2. do your research
• 3. don't have all the answers
• 4. don't quibble over the small stuff
• 5. create dependence
• 6. use power of who you know
• 7. don't appear overbearing
• 8. use time strategically
• 9. don't play the same power hand twice

• 1. Principled Offers and Concessions
• 2. Argument
• 3. Threats and Promises
• 4. Silence and Patience
• 5. Silence and Patience
• 6. Anger
• 7. Aggressive Behavior
• 8. Uproar
• 9. Settlement Brochures and Video Presentations
• 10. Boulwareism
• 11. Salami
• 12. Br'er Rabbit
• 13. Mutt and Jeff
• 14. Belly Up
• 15. Passive-Aggressive Behavior

provide rational basis for each offer of concession

reasons for position given - factual and legal info to support

Negative Threats - the cost of refusing to accept the offer

Affirmative Promises - indicated willingness to change a position if other party does something in return

state your position and listen - the more you talk the more you give away

can convince other side that you are serious - but don't let it get out of control

Wouldn't recommend this

EX: rude interruptions - can control agenda and convince other party through actor's strength

threaten dire consequences

in responding - consider if consequences will occur

presentations of positions - can appeal to those who communicate visually

first, firm, final offer

• Risks
• 1. may insult other party
• 2. denies other party opportunity to participate
• 3. denies other party opportunity to feel they had input in the result
• 4. may give opponent, used to the negotiation dance, expectation of greater gain

take a little bit at a time (one slice at a time)

reverse psychology

good cop/bad cop

act as though they are weak, but are really wolves in sheep's clothing

make them want to sympathize you, and when you get it suggest the need for further accommodation

do not directly challenge the opponents' proposals - simply may forget something

• 1. never say yes to first offer
• 2. flinch - react with shock and surprise
• 3. avoid confrontation
• 4. play the reluctant buyer or seller (don't lie)
• 5. Don't worry about price - satisfy the other's interests and they will satisfy yours
• 6. don't split the difference - let your opponent do this
• 7. Set it Aside - when you don't agree, set it aside (need to consult with soeone of higher authority)
• 8. Art of Concession - small steps in power
• 9. make time your ally - keep them as long as possible
• 10. most dangerous moment - watch out for the "salami" where they try to add more little by little
• 11. Learn to develop walk away power

Negotiators will often reject even profitable offers if they perceive them as being unfair. Consequently, concluding an agreement often requires negotiators not only to believe that the deal point lies within the bargain zone, and therefore is mutually beneficial, but also that the division of the cooperative surplus is a fair one.

When power fails. socially constructed notions of fairness. power rooted in indiv. rational, fairness tactics rooted in social concept of reasonableness

Social convention demands reciprocity. If one person gives something of value to another, we usually expect that the recipient will reciprocate in some way. When people demonstrate reciprocity, they satisfy social convention.

The rule says that we should try to repay, in kind, what another person has provided us. By virtue of the reciprocity rule then, we are obligated to the future repayment of favors, gifts, invitations, and the like. The phrase “much obliged” has become a synonym for “thank you.”

• 1. pressures recipient of already made concession to respond in kind
• 2. 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.

The concept of a first, firm, fair, final offer made by the offer, who then refuses to negotiate further. This is the negotiation tactic of refusing to revisit an initial offer. While it may work in consumer transactions, if reciprocity is expected, it can prevent a successful negotiation.

An agreement on standard terms, that is, the same terms that have been agreed upon by similar negotiating situations, is considered fair to both parties

Another method of relying on social conventions to divide a cooperative surplus is to base the deal point on what is normal or conventional—that is, what agreements have been reached in other similar negotiating situations. Convention carries with it a strong sense of reasonableness, such that an agreement reached on terms that are normal is one likely to be viewed as fair.

Getting to Yes uses the term objective criteria to refer to conventions

essentially reference points - however usually contested if not liquid market

The terms of future exchanges are characterized by a reference price or wage, and a positive reference profit to the firm. This is restricted to cases in which the fairness of the reference transaction is not itself in question. Market prices, posted price, and the history of previous transactions between a firm and a transactor can serve as reference transactions.

The reference transaction provides a basis for fairness judgments because it is normal, not necessarily because it is just. Terms of exchange that are initially seen as unfair may in time acquire the status of a reference transaction.

Transactors have an entitlement to the terms of the reference transaction and firms are entitled to their reference profit. A firm is not allowed to increase its profits by arbitrarily violating the entitlement of its transactors to the reference price, rent or wage.

1. “Equality” (or parity) refers to identical distribution of benefits - splitting the difference btwn offers rather than RPs.

2. “Equity” is the distribution of benefits according to the contribution or merits of the parties - more willing to accept unequal distributions if inequality results from relevant difference btwn parties.

3. “Need” implies a distribution of benefits according to the differing individual needs of the parties - what you get depends on where you stand.

Take it or leave it offer

player will reject offers they view as unfair, even when doing so is costly to them

Player 2 has no choice but to accept whatever split of the stake Player 1 cares to offer him

Player 1 commits to accept less than his RP and force Player 2 to concede in face of commitment

proposers offer a non-trivial portion to completely helpless respopnder - negotiators achieve some utility from treating their opponent fairly or not taking complete advantage

if faced w/fairness based argument:

• 1. Agree fair agreement is desireable, but suggest alternative fairness norms
• 2. challenge opponent to justify
• 3. refuse to agree on basis of fairness, respond with power tactics
• 4. suggest allowing a neutral party (mediator) to determine what is fair

When to conceal and when to reveal, whether to cooperate or defect

to expand bargaining zone, negotiators must discuss interests and preferences;

But to capture the maximum amount of any cooperative surplus thereby created, they must be secretive concerning their real positions

individual - dominant strategy is to defect

Do we share relevant info with opponent?

if both players go for their best possible result (dominant strategy), they end up with worst combined outcome, but best indiv outcome

Best combined strategy is cooperation, but worst indiv outcome (can only work if each side assured other will pursue)

requires communication and trust

Best outcome is to defect (dominant) but worst combined outcome

Best combined is cooperation, but worst indiv strategy

both prisoners should defect to min their sentencing b/c each is better off defecting without firm agreement or confidence that the other will also cooperate

• 1. begin with cooperation
• 2. then do what other player did on previous move
• 3. when two nice rules play, they are sure to cooperate with each other until virtually the end of the game

selfish indivs for their own selfish good will tend to be nice and forgiving and non-envious - Nice guys can finish first

the "nice" strategy that scored lowest was least forgiving - permanent retaliation

Nice does not mean good, just that it was good in his tournament

• 1. nice
• 2. retaliating - don't be a blind optimist, always retaliate
• 3. forgiving - will retaliate but will once again fall back to cooperating
• 4. non-envious - don't strive to score more than the opponent (impossible for nice)

Downing attempts to calculate the probability that the adverse player will respond favorably to cooperative moves by DOWNING.

If the other player seems to be doing the same thing whether DOWNING cooperates or not, DOWNING begins to defect, losing hope of cooperation.

By assuming initially that the other player is uncooperative, DOWNING will defect on the first two moves, leading many other strategies to punish DOWNING (e.g., TIT-FOR-TAT).

solution concept of a game involving two or more players, where no player has anything to gain by changing only his or her own strategy unilaterally

if each player has chosen strategy and no player can benefit by change his strategy while other players keep theirs unchanged, then the current set of strategy choices and the corresponding payoffs constitute a Nash Equilibrium

distributive lie - one by which the liar seeks to capture an advantage over the other party - liar becomes richer and victim becomes poorer (zero sum game)

• 2 Types:
• 1. lies about RPs, opinions as to value, undisclosed principal situations
• 2. lies or misrepresentations as to operative facts

• 1. honesty not necessarily the best policy
• 2. one who lies is in a position to capture many benefits and suffer only a small cost or consequence

fear of sharing info often doesn't produce optimatl results or bargaining surplus

lying causes defense lying by others

naming, blaming, claiming

stating and restating positions

don't worry about other side - protect yourself

goal is to win as much as possible

• 1. prepare
• 2. discuss
• 3. propose (anchor)
• 4. bargain (if, then)
• 5. think in terms of value to the other side

all interests must be satisfied

can only control yourself

be proactive rather than reactive

• 1. win/win
• 2. win/lose
• 3. lose/win
• 4. lose/lose
• 5. win
• 6. win/win or no deal

• 1. interests
• 2. options
• 3. alternatives
• 4. standards
• 5. relationships
• 6. communications
• 7. commitment

problem-solving or ethical bargaining

• Motivational objectives
• 1. conducting self ethically
• 2. maximizing settlement for client
• 3. getting a fair settlement
• 4. meeting clients' needs
• 5. avoiding litigation
• 6. maintaining or establishing a good relationship with opponent standard of fairness and ethical dealing

attempts to meet the needs of both parties and looks for ways to expand the bargaining zone

cooperative bargainer, fully trained as a value claimer, but recognizes that cooperation is a better way to negotiate

1. use standards of legitimacy to distribute the surplus

2. use value claiming tactics to claim larger share of surplus created through cooperation

when a single defection can set off a long string of recriminations and counter-recriminations, both sides suffer

aka value claimer/distributive or adversarial bargainer

• 1. maximizing settlement for client
• 2. obtaining profitable fee for self
• 3. outdoing or outmaneuvering the opponent

seeks to gain most possible for himself at the expense of others

wants to win, enjoys feeling in control, eager, conflict doesn't make them uncomfortable, stake out positions, fight hard

• unsure of himself
• unsure of the value of the case
• conservative, staller, cautious, deliberate
• tends to be idealist

• characterized by negaive traits
• can be described as irritating

• 1. Avoiding - not concerned for other's interest, low levels of empathy AND assertiveness
• 2. competitive - only concerned with yours, substantial assertion, but little empathy
• 3. accommodating - concered with both interests, consists of substantial empathy but little assertion
• 4. Collaborative - everyone's interest
• 5. Compromising - wants to split the difference

Empathy is the process of demonstrating an accurate, nonjudgmental understanding of the other side’s needs, interests, and positions.

• perspective taking - see world through other negotiator's eyes
• ability to express and advocate for one's own needs, interests, and positions

Assertiveness is the ability to express and advocate for one’s own needs, interests, and positions. The underlying skills include identifying one’s own interests, speaking (making arguments, explaining), and even listening.

Collaborating and accommodating orientations evidence a strong desire to meet the needs of the opponent.

Compromising orientation demonstrates a moderate desire to meet the needs of the opponent.

Competing and avoiding orientations reflect a lack of concern for satisfying the opponent.

Collaborating and competing orientations demonstrate a desire to satisfy the negotiators’ own interests.

Compromising orientation, to a lesser degree, demonstrates a desire to satisfy the negotiators own interests.

Accommodating and Avoiding orientations evidence a relative lack of desire to satisfy the negotiator’s own interest.

• 1. don't criticize, condemn or complain
• 2. give honest, sincere appreciation
• 3. talk about what they want and show them how to get it

• 1. become genuinely interested
• 2. smile
• 3. remember their name
• 4. be a good listener (seek to understand, then to be understood)
• 5. talk in terms of other person's interests
• 6. make other person feel important and do it sincerely

• 1. show respect
• 2. admit when you are wrong
• 3. begin in friendly way
• 4. get other person saying yes, yes immediately
• 5. let other person feel idea is his
• 6. see things from other's point of view
• 7. be sympathetic
• 8. appeal to nobler motives
• 9. dramatize your ideas
• 10. throw down a challenge

• 1. full disclosure
• 2. nondisclosure
• 3. nondisclosure when other side has erroneous assumptions
• 4. misleading statements about misleading issues
• 5. intentional false statements about material facts

• 2 issues
• 1. culture - don't imitate, but normalize
• 2. gender

The cultural differences that seem to be the most consistent across studies are those between negotiators from western and eastern cultures

the western focus is on the individual, solving problems, and material progress

The eastern emphasis is on the collective good and preserving social structures

Individualism: In individualistic cultures, norms and institutions promote the autonomy of the individual. Individual accomplishments are rewarded and revered by economic and social institutions, and legal institutions protect individual rights. (care more about themselves)


Collectivism. In collectivist cultures, norms and institutions promote interdependence of individuals through emphasis on social obligations.

Norms and institutions promote interdependence of individual through emphasis on social obligations

Identify more strongly with their in groups

Goals should be aligned with the in group goals which are set by their culture

Norms and institutions promote autonomy of the individual

You tend to have strong self interests

They are unconcerned with how negotiation is going for the other party, so long as it is going well for himself/herself

their behavior depending upon with whom they are interacting

Western culture

Hierarchical. In hierarchical cultures, social status implies social power. Social Superiors are granted power and privilege, but are obligated to look out for the needs of social inferiors. (people are on different levels)

Egalitarianism. In egalitarian societies, where social boundaries are permeable and superior social status may be short-lived, there is no obligation to look out for the needs of social inferiors. (everyone is equal)

Social status implies social power

Conflict poses a threat to the social structure

Conflict between members of diff social ranks is likely to less frequent

Conflict between members of the same social rank is likely to be handled by deference to superior

Social boundaries are permeable (can go up or down real easy)

Superior social status may be short lived

No obligation to look out for the needs of social inferiors

Conflicting members resolve the conflict themselves

Support direct, face to face negotiations

High-context cultures. In high-context cultures little information is in the message itself. Instead the contest of the communication stimulates pre-existing knowledge in the receiver. In high-context cultures meaning is inferred rather than directly interpreted from the communication (infro gained through indirect communication).

Low-context cultures. In low-context cultures information is contained in explicit messages, and meaning is conveyed without nuance and is context free. Communication in low-context cultures is action oriented and solution minded. The implications of the information are laid out in further detailed communications. (info gained through direct communication)

Easter/China and Japan

Little info is in the message itself

The context of the communication stimulates pre existing knowledge in the receiver

Meaning is inferred rather than directly interpreted from the communication

• A masculine type of speech is usually more direct, specific, dominant, fewer words, autonomy, competence, doesn’t solicit advise from another, more goal oriented, I just want to get in and fix it talk.
• a. look for rational solution
• b. competing style

• A feminine type of communication tends to elaborate more, cooperation, consensus, subordination, qualifiers (sort of cold out there), looking for consensus, intensifiers (awfully nice day today), talk about it just to talk about it
• a. seek open communications to reach a result through understanding
• b. cooperative style

The principal (client) talks to their agent (their attorney) and then, assuming litigation, you have principal 2 and their agent

Two conversations right there, and then you have the conversation going on between the two sets of people

• 1. Expertise
• a. technical (the law)
• b. negotiating

2. Signaling - employment of lawyer signals that you are serious about reaching an agreement

• 3. Dispassionate Observation
• a. objectiveness
• b. detachment

4. Access

5. Strategic Advantage - how reputation effects negotiation

6. Cost Effectiveness

• 1. different interests
• 2. different personalities
• 3. differenct preferences
• 4. expense - costs to have an agent

• same elements
• 1. RP
• 2. BATNA
• 3. gather info about other side

• 1. two or more parties may form a coalition
• 2. multiple parties makes question of fair division more complicated
• 3. more difficult to id a deal point that exceeds RP of all parties

Forming together to be cooperative

Intermediate Coalitions: The possibility of coalitions in multilateral bargaining situations creates a new possible intermediate outcome of negotiations. There exists the possibility of an “intermediate coalition,” in which some, but not all, of the relevant parties agree to cooperate. Then the question for each negotiator is whether to join a coalition at this intermediate stage or to “hold out.”

being left out of the coalition

waiting for the other side to do all the work and wait for them to come in

If one of the parties would gain a benefit greater than its initial BATNA from not joining the coalition, it can wait to determine whether joining the coalition will give it a greater benefit than not joining the coalition.

just going along for the ride and taking advantage of the deal

If a coalition cannot act without unanimous agreement of all relevant parties, one uncooperative party (a “hold-out”) can stymie the desires of a group. This can be a strategic opportunity for the party that holds out.

if it looks like a deal is coming into play that is not benefiting me, may come in and form a coalition and with that coalition block the other party so we can make a deal

Equality/Equity. Parties relying upon fairness to divide a cooperative surplus rely on the principle of equality (even distribution) or the principle of equity (distributions according to the value of their contributions).

If they did none of the work, why is it they are going to get the same shares of the people who did the work to try to get the deal

if you have multiple people working on a deal, you end up getting everything written down on one paper and you make changes to that one particular instrument

• good b/c there are no misunderstandings
• draft a proposed agreement and asks the other negotiators, without commitment, for their suggestions and criticisms. After receiving suggestions and criticisms, the original author redrafts the proposal. The revised draft is then resubmitted to the parties, and the process of receiving suggestions, criticisms, and redrafting continues until an agreement is reached.

1. facilitate introspection and analysis - identifying and expanding bargaining zone & creating and dividing a cooperative surplus

2. Facilitate Communication

3. Evaluate Issues Relevant to the parties' RP

4. Filter Private Information

5. Create Focal Points

6. Reduce Reactive Devaluation

• 7. Determine Distributive Tactices -
• The mere presence of a neutral party might impede negotiators from adopting these types of hard bargaining tactics.

the study of moral standards and how they affect conduct, a system of moral principles governing the appropriate conduct for a person or group

your ethics reflect your moral code, they dictate your conduct

a vocation requiring knowledge of some department of learning or science

one who follows an occupation as a means of livelihood or gain or one who is engaged in one of the learned professions

exhibited by one of the professional character, spirit or methods or the standing, practice, or methods of a professional as distinguished from an amateur

• honesty
• knowledge
• continued learning
• competence (different from knowledge)
• integrity
• humility
• civility
• public service

a professional is obligated to attend to the best interest of their clients, rather than self interest

professionals are accountable to their clients, to society on issues of public health, and to their profession

professionals are obligated to make a commitment to life long learning

professionals should accept a commitment to service within the profession and the community

professionals should be committed to being fair, truthful, and straightforward in their interactions with patiends and the profession

professionals should demonstrate respect for clients, other professionals, and the public

being in accordance with the accepted principles of right and wrong that govern the conduct of a profession

to confer with another or others in order to come to terms or reach an agreement to arrange or settle by discussion and mutual agreement

to negotiate ethically

aims for win/win situation

does not address persuasion, rather the emphasis is to persuad people to treat each other with greater respect, understanding, caring and fairness

contrasted from principled negotiation

to bargain is to negotiate the terms of an agreement as to sell or exchange

position - a point of view or attitude on a certain question

to bargain from a position is to bargain from one's own point of view or attitude

Don’t mislead by nondisclosure, but protect yourself by asking questions about uncertain areas of law or fact.

Even though Model Rule 4.1(a) states that attorneys must be truthful when they make statements concerning material law or fact, a Comment expressly indicates that lawyers have “no affirmative” duty to inform an opposing party of relevant facts. . . . . This doctrine is premised upon the duty of representatives to conduct their own legal research and factual investigations.

Nondisclosure is treated as misrepresentation when the nondisclosing party actively conceals a material fact from a negotiating opponent or tells a partial truth that implies a falsehood.

When a negotiator is merely silent as to the existence of a material fact that, if know, would weaken his/her bargaining position, however, there is no bright-line rule that can reliably divide actionable from nonactionable nondisclosure.

Disclosure of material facts is required when the negotiator has a fiduciary-type relationship of trust with the opponent, or when disclosure is necessary to prevent a previous statement from being false (for example, when a lawyer acquires new information inconsistent with a previous assertion) and also in the apparently broad set of circumstances in which standards of fair dealing require disclosure.

Watch out for selective disclosure of facts. Protect yourself with questions, and avoid blocking techniques.


Negotiators regularly use selective disclosures to enhance their positions. When attorneys emphasize their strengths, opposing counsel must attempt o ascertain their hidden weaknesses. They should carefully listen for verbal leaks and nonverbal signals that may indicate the existence of possible opponent problems. Probing questions may be used to elicit some negative relevant information, and external research may be employed to gather other relevant data.

There is no affirmative duty to inform an opposing party of relevant facts.

There is a misrepresentation if the lawyer incorporates or affirms a statement of another person that the lawyer knows is false. Misrepresentations can also occur by failure to act.

Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily not taken as statement of material fact.

The existence of an undisclosed principle is not ordinarily taken as a statement of material fact, except where nondisclosure of the principal would constitute fraud.

It is professional misconduct for a lawyer to (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Generally, misrepresentations of fact are actionable, but misrepresentations of opinion usually are not. [But both can be untruthful.] The distinction is a proxy for whether the utterance is one upon which the la*w judges the recipient is justified in relying. [Restatement (Second) of Torts §525].

When the parties are so situated that the buyer may reasonably rely upon the expression of the seller’s opinion, it is no excuse to give a false one. And so it makes much difference whether the parties stand “on an equality.”

“Puffing:” or “sales talk” are not actionable misrepresentations.

Example: Copying Machines were “of good quality” and would “last a lifetime” were not actionable misrepresentations.

Land worth $7,500 per acre when it is really worth only $4,000 per acre is merely an opinion.

Statements about future quality are generally treated like claims about current quality or value—that is, nonactionable even if false, because it is not reasonable to rely on such opinions.

Example: General Foods representation that “Burger Chef” restaurant franchises would remain viable and expand in the future, even though it was alleged that General Foods was already planning to sell the chain.

When sellers’ claims about their wares concern specific, objective characteristics, and represent the present state of the world rather than a future sate, courts have been far more likely to find false statements to be actionable “facts” rather than non-actionable “opinions.”

Statements of opinion can be actionable when the opinion is based implicitly on facts that the seller has superior access to or knowledge of than the buyer.

The concept has been applied primarily in situations where assumed knowledge possessed by the party expressing the fraudulent opinion is a motivation to the other to enter into the transaction, or where the defendant has held himself out as particularly knowledgeable.

Example: Real estate agent told customer that signed earnest agreement was unenforceable.

The historical rule was that sellers’ claims about the existence of competing offers constitute puffin, or “seller’s talk.” Recent cases, however, have usually reasoned that, as the seller has more information about alternative offers than the prospective buyer, it is reasonable for the prospective buyer to rely on the veracity of the very factual claims made by sellers about the existence of other firm offers. Some courts have found the same strictures applicable to buyers.

Although some courts have found negotiators’ false statements about the existence of alternative to be actionable, it is highly unlikely that a negotiator’s false statement about his/her reservation price would be found actionable.

ABA Model Rules of Professional Responsibility Rule 4.1 proscribes lawyers from making false statements of fact or law, but assets that a party’s intentions as to an acceptable settlement of a claim are not considered a material fact.

Contract - transaction voidable by victim (rescission)

Tort - action for damages

lawyer can be held personally liable & subject to professional discipline

Under contract law, a contract can be rescinded if one party is mistaken as to a basic assumption that has a material effect on the transaction, if the other party knows of the mistake and the first party does not ear the risk of such a mistake. A party is considered to bear the risk of a mistake if he agrees to bear the risk or if he enters the agreement knowing that his knowledge is incomplete or uncertain.

if it doesn't involve crime or fraud, and client asks you not to disclose, you can't

• Certain litigation costs may be awarded against a party who rejects an offer made substantially in accordance with this rule to settle a claim for monetary damages — including a counterclaim, cross-claim, or third-party claim — EXCEPT in:
• (a) a class action;
• (b) a shareholder’s derivative action; (c) an action by or against the State, a unit of state government, or a political subdivision of the State;
• (d) an action brought under the Family Code;
• (e) an action to collect workers’ compensation benefits under title 5, subtitle A of the Labor Code; or
• (f) an action filed in a justice of the peace court or small claims court.

Defendant’s declaration a prerequisite; deadline. A settlement offer under this rule may not be made until a defendant — a party against whom a claim for monetary damages is made — files a declaration invoking this rule. When a defendant files such a declaration, an offer or offers may be made under this rule to settle only those claims by and against that defendant. The declaration must be filed no later than 45 days before the case is set for conventional trial on the merits.

• A settlement offer must:
• (1) be in writing;
• (2) state that it is made under Rule 167 and Chapter 42 of the Texas Civil Practice and Remedies Code;
• (3) identify the party or parties making the offer and the party or parties to whom the offer is made;
• (4) state the terms by which all monetary claims — including any attorney fees, interest, and costs that would be recoverable up to the time of the offer — between the offeror or offerors on the one hand and the offeree or offerees on the other may be settled;
• (5) state a deadline — no sooner than 14 days after the offer is served — by which the offer must be accepted;
• (6) be served on all parties to whom the offer is made.

An offer may be made subject to reasonable conditions, including the execution of appropriate releases, indemnities, and other documents. An offeree may object to a condition by written notice served on the offeror before the deadline stated in the offer. A condition to which no such objection is made is presumed to have been reasonable. Rejection of an offer made subject to a condition determined by the trial court to have been unreasonable cannot be the basis for an award of litigation costs under this rule.

An offer must not include non-monetary claims and other claims to which this rule does not apply.

• An offer may not be made:
• (1) before a defendant’s declaration is filed;
• (2) within 60 days after the appearance in the case of the offeror or offeree, whichever is later;
• (3) within 14 days before the date the case is set for a conventional trial on the merits, except that an offer may be made within that period if it is in response to, and within seven days of, a prior offer

Generally. If a settlement offer made under this rule is rejected, and the judgment to be awarded on the monetary claims covered by the offer is significantly less favorable to the offeree than was the offer, the court must award the offeror litigation costs against the offeree from the time the offer was rejected to the time of judgment.

• A judgment award on monetary claims is significantly less favorable than an offer to settle those claims if:
• (1) the offeree is a claimant and the judgment would be less than 80 percent of the offer; or
• (2) the offeree is a defendant and the judgment would be more than 120 percent of the offer.

• Litigation costs are the expenditures actually made and the obligations actually incurred — directly in relation to the claims covered by a settlement offer under this rule — for the following:
• (1) court costs;
• (2) reasonable fees for not more than two testifying expert witnesses; and
• (3) reasonable attorney fees.

• The litigation costs that may be awarded under this rule must not exceed the following amount:
• (1) the sum of the noneconomic damages, the exemplary or additional damages, and one-half of the economic damages to be awarded to the claimant in the judgment; minus
• (2) the amount of any statutory or contractual liens in connection with the occurrences or incidents giving rise to the claim.

No double recovery permitted. A party who is entitled to recover attorney fees and costs under another law may not recover those same attorney fees and costs as litigation costs under this rule.

Limitation on attorney fees and costs recovered by a party against whom litigation costs are awarded. A party against whom litigation costs are awarded may not recover attorney fees and costs under another law incurred after the date the party rejected the settlement offer made the basis of the award.

Litigation costs to be awarded to defendant as a setoff. Litigation costs awarded to a defendant must be made a setoff to the claimant’s judgment against the defendant.