Law Librarians of Puget Sound Workshop
2008
“Lowering the Barriers to Agreement”
Presented by Prof. Alan Kirtley
May 14, 2008
Agenda
• Roleplay of a simple negotiation
– Prado Scoot
• Discussion of negotiation strategies
• Group Choice
– Review other barriers to optimal agreements
• Or
– Q and A period
Prado Scoot Roleplay
• Spend 10 minutes preparing to negotiate
• Find your negotiating partner and bargain
for 15 minutes
Negotiation Strategies
• Prado Scoot: Opportunity for Different
Negotiation Strategies
– Competitive
– Cooperative
Competitive Strategy
Competitive Strategy:




“zero sum”
“adversarial”
“distributive”
“positional”
Every dollar gained is an equivalent dollar
loss to the other negotiator
Competitive Strategy
• Competitive Strategy helps a negotiator
receive a large slice of the pie
• Parties following a competitive strategy in
Prado Scoot would only bargain over price
Cooperative Strategy
Cooperative Strategy:




“interest based bargaining”
“integrative bargaining”
“principled negotiation”
“Getting to Yes principles”
Negotiators can find positive trade-offs in
their differing goals, preferences and
values
Cooperative Strategy
• Cooperative Strategy helps the negotiators
make a bigger pie to slice
• Parties following a cooperative strategy in
Prado Scoot would explore trade-offs
Unified Concept of Negotiation
Recognizes that nearly every negotiation
has both competitive and cooperative
aspects
Recognizes that no matter how big the
negotiators make the pie they will still have
to slice it
The Negotiator’s Dilemma
How to strike the right balancing between
cooperative and competitive strategies in
any give negotiation
The Negotiator’s Dilemma
Cooperation generates positive trade-offs
and better deals through openness
Risk: You can be taken advantage of
Competition results in a larger slice of the
existing pie for you by holding your cards
close to your vest
Risk: You can miss valuable trade-offs
Navigating the Negotiator’s
Dilemma
• Begin a negotiation by being open to
cooperation
• Attempt to use the Getting to Yes
principles:
1.
2.
3.
4.
5.
Separate the People from the Problem
Focus on Interests and not Positions
Invent Options for Mutual Gain
Insist on Objective Criteria
Know your BATNA
Navigating the Negotiator’s
Dilemma
• Remain cooperative only so long as there
is a balanced exchange of:
– Information
– Preferences
– Goals
– Proposals
Navigating the Negotiator’s
Dilemma
• The cooperative negotiator is indifferent
to the gains of the other party so long as
he/she continues to make gains
Barriers to Optimal Agreements
• Types of Barriers
– Social Psychological
– Strategic
– Cognitive
– Functional
Social Psychological Barriers
• Conflicting Negotiation Styles
• Five Thomas-Kilmann Categories
– Competing
– Accommodating
– Avoiding
– Collaborating
– Compromising
Navigating Negotiation Style
• Work toward making your default
negotiation style collaborative
• Train yourself to adopt any one of the
other styles to respond to:
– The negotiation context
– Your negotiating partner’s style
Social/Psychological Barriers
• Reactive Devaluation
– People react to proposals made by an
adversary by automatically devaluing them.
– The identical proposal will be rated higher if
delivered by an ally or neutral.
• Mediators add value by reducing reactive
devaluation.
Strategic Barriers
• Conflicting Negotiation Strategies
– Compete vs. Avoid
– Compete vs. Compete
• Principal/Agent Issues
– Present when the principal’s and agent’s
interests do not align
Cognitive Barriers
• Cognitive Barriers
• Human reasoning departs from rational
judgment and decision making
– Anchoring
– Self-Serving Bias
– Risk aversion
– Loss aversion
Cognitive Barriers
• Choose one:
A. Receiving $20 in cash or
B. A 30% chance of receiving $100
Cognitive Barriers
• Risk aversion
o People will take a sure thing over a gamble
even where the gamble may have a higher
expected value
Cognitive Barriers
•
Choose one:
A. A 30% chance of paying $100 or
B. Paying $20
Cognitive Barriers
• Loss Aversion
– People will gamble at 30% odds of paying
$100 rather than taking a certain loss of $20
Functional Barriers
• Failure of adequate preparation (fact gathering,
analysis or strategic planning)
• Failure of effective communications
• Emotionalism
• Linkages to other disputes or preexisting
commitments
• Different assessment of BATNA’s
– Different Information
– Different Assessment of same information
• Constituency Pressures