The Language and Psychology of
Negotiations
Sayyed Mohsen Fatemi, Ph.D.
Harvard University
University of Toronto
smfatemi@wjh.harvard.edu
Time, Complexity, Creating and
Claiming Values
Tactics for Success: Find Common Interests by
Asking the Right Questions!
• Open-ended: “What were you hoping to settle
today?”
• Leading: “Don’t you think this proposal meets one of
your goals?”
• Clarifying: “Can you postpone collecting that fee until
next year?”
• Gauging: “How important to you is the 24-hour
service guarantee?”
• Seek agreement: “If we agree to your delivery terms
do we have a deal?”
Common Nonverbal Behaviors
Tactics for Success:
Practice Active Listening
• Active Listening = focus on what the other
person is saying, understanding both the
content and emotion
Practice Tips for Active Listening
#1 Maintain eye contact
#2 Think only about what they are saying, don’t
formulate a response
#3 Take notes and use them to reflect their
thoughts back
#4 Pay attention to body language
#5 Confirm that you heard and understand by
summarizing – ask reflective and probing
questions
The Four Ears of Listening
Creating Persuasive Arguments
• Three keys (according to Aristotle):
– Passion (Pathos): focus on emotions
• Example: appeals to fairness, reciprocity
– Logic (Logos): focus on information
• Example: mathematical estimates, pros and cons of an
action
– Character (Ethos): focus on the person
• Example: Cite their reputation for
honesty, fairness, authority
Using Persuasive Language
•
Tactics that make an argument persuasive:
1. Metaphor: A powerful way to convey meaning from one thing
to another
2. Humor: Can create a positive atmosphere, or diffuse a tense
moment
3. Using props: Visual people respond better to images and words
than verbal communications. Props can focus the discussion
easily
4. Storytelling: Conveys the interests behind the position
5. Focus on other party’s perspective: Use either a central route –
encourage content, or peripheral route – using throwaways,
friendly/flattering behavior
Tools for Persuasive Communication
• Successful negotiators create leverage through persuasive
– Verbal communication: direct single dialogue to present a
position, followed by silence (use tone, pitch, and volume of your
voice to convey meaning)
– Nonverbal communication: can add emphasis through body
language, facial expressions, actions
• Kinesis: posture and physical movements (standing up, circling, walking
out)
• Eye movement: maintain eye contact to convey security, truthfulness
• Facial expression: can express anger, happiness, fear, concern, etc., but also
can be misread
• Gestures: can be misread
• Time and space: arriving on time, pleasant meeting space send cues
The Categorization Method
Step One: Identify all issues
Step Two: Classify each issue as
a. compatible
b. exchange
c. distributive
Step Three: Agree on all compatible issues
Step Four: Trade or exchange issues of
approximately equal value
Step Five: Use distributive bargaining on all
unresolved issues
5-16
Tools for Persuasive Communication
• Successful negotiators create leverage through persuasive
– Verbal communication: direct single dialogue to present a
position, followed by silence (use tone, pitch, and volume of your
voice to convey meaning)
– Nonverbal communication: can add emphasis through body
language, facial expressions, actions
• Kinesis: posture and physical movements (standing up, circling, walking
out)
• Eye movement: maintain eye contact to convey security, truthfulness
• Facial expression: can express anger, happiness, fear, concern, etc., but also
can be misread
• Gestures: can be misread
• Time and space: arriving on time, pleasant meeting space send cues
5-17
Persuasion Through Process
•
Process techniques to shape the other party’s
perception
1. Identify the decision maker: take the discussion to
them
2. Address needs of individual team members if the
interests of the groups are diffused
3. Frame the issue in terms of achieving common good
for both parties, or meeting shared core values
4. Share the diagnosis of the problem to create support
from both parties
Preparation
• Decide your BATNA - always start with a clearly defined
BATNA and stick to it
• List all key issues either party will want decided. Include
tangibles, intangibles, throwaways…the more the better!
• Set priorities for the key issues by either: 1. Ranking; 2.
Weights (%); 3. Assign each issue to one of four priority
levels—Essential, Important, Desirable, Throwaway
• Develop support arguments based on information, facts,
logic
Reframing Offer
• William Ury, Getting Past No, suggests that
negotiators never say no or reject an offer instead
they reframe by using questions:
– Ask why: “Why did you select that exact number?”
– Ask why not: “Why not ask for an estimate from a
professional appraiser?”
– Ask what if: “What if we agree to your price, but you
paid for delivery and warranty?”
– Ask for advice: “How would you suggest I present this
offer to my boss when she has rejected that price?”
Reframing Personal Attacks
• Personal attacks have become a common tactic –don’t
let emotions take over strategy
• How?
– Prepare: Expect personal attacks, control your
emotions
– Recognize: The other party needs to “blow off steam”
– Reframe: Ignore the attack on you, reframe it on the
problem
– Silence: Communicates your displeasure and can be a
powerful tool
Conflict Diagnosis
Identify the underlying
interests of the participants
in the conflict.
Interests Analysis
• Causes of interpersonal conflict from the
perspective of individual disputants
• Learn about underlying disputant
motivation
• Learn about possible complementary
goals
• Learn about possible conflict of interest
between members of a team and
between members of different teams
Advantages of Knowing Your
Team’s Interests
• Gain a clearer understanding of your goals
• Clarify: what interests could best be met in
resolving this conflict; what interests would
be better met elsewhere
• Develop flexibility in bargaining position so
good settlement is more attainable
• Avoid the problems of positional
bargaining
What’s Wrong with
Positional Bargaining?
• Danger of becoming locked into position
psychologically – regardless of whether a
better option is available to you
• Danger of becoming blinded to important
issues unrelated to your position
• Tendency to see the other disputant as the
enemy, leading to unnecessary impasse,
additional “spinoff” conflicts (“meta-conflicts”),
etc.
Advantages of Understanding
Other Disputant’s Interests
• Develop proposals beneficial to you, that other
disputant will want to accept
• Take advantage of opportunities created by
complementary interests
• Avoid later sabotage of settlement by disputant
forced into undesirable settlement
• Avoid positional bargaining by appealing to
other disputant’s interests
• Has useful even if you have to use coercion
Interest Trees
• Are a way to organize information about
interests
• Help you understand underlying
interests better
• Help you develop strategies to meet the
most important needs
Positions
Aspirations
Underlying interests
Principles, values
Basic human
needs
The “Conflict Onion”
Interest Tree
Example
I’d take
anything over
$10,000 if I can
avoid court!
Get fair
settlement
Brother-in-law will
think I’m spineless if
I don’t get good
result
Get back out-ofpocket losses
I demand $20,000
or I sue!
Avoid court:
risky!
POSITION
Get paid as
soon as
possible
Avoid time,
expense of
court
Need money
now: can’t
pay rent
ASPIRATIONS
INTERESTS
PRINCIPLES
and VALUES
People should
be fairly paid
Wrongdoers
should be
punished
Esteem needs
Identity needs
Deficiency needs
(food, shelter,
safety, clothing,
etc.)
Security needs
NEEDS
Tips for Interest Trees
• There must always be needs – other
elements are optional
• There may be multiple levels of underlying
interests
• Each position, aspiration, interest, and
principle/value rectangle must logically relate
(directly or indirectly) to one or more need
rectangles
• Don’t confuse interests with facts or
contentions
Conflict Diagnosis
Assess the negotiation styles of the
participants in the conflict, consider
how these styles impact the
conflict, and develop plans for
encouraging cooperation and
collaboration among participants.
Power Tools and Magic Keys
• Using conflict diagnosis to understand
interpersonal conflict – information for
legal professionals
• Selecting a dispute resolution forum
Using Conflict Diagnosis
• Is it necessary?
• Is it possible?
• Techniques for incorporating conflict
diagnosis into legal advocacy
Invisible Veil Considerations
• Reasons for needing conflict diagnosis are
often hidden
• Conflict escalation obscures important
information and disempowers participants
“I Don’t Have Time”
• Conflict diagnosis can produce “better
dispute resolution”
• Often, conflict diagnosis must be
curtailed due to time
• Legal professionals may be prevented
by:
– Billable hours requirement
– Belief that legal ethics require positional
bargaining and/or adversary conduct
Changing Perspectives
• Legal scholars commenting on
limits of adversary processes:
– Collaborative law movement
Negotiation
Disputant
“Persuade”
directions
Disputant
Decision makers
Other
participants
Benefits of Negotiation
•Protects cooperation cycle
•Is less expensive, quicker
•Protects disputant relationships
•Is less likely to breed new conflicts
•Can address nonlegal issues and
issues for which cause of action has
not been stated; can settle ENTIRE
conflict
Cooperation and Competition
Negotiation
style
COOPERATION
High Concern for
Other
Negotiation
style
Negotiation
style
COMPETITION
High Concern for
Self
Conflict behavior can be assertive, or
cooperative, but not both
Obliging
Concern for Other
Dual-Concern high
Negotiation
Theory
Integrating
Compromising
Avoiding
Dominating
low
low
Concern for Self
Conflict behavior can be assertive, cooperative, both, or neither
high
Perspectives on Negotiation Styles
Cooperative styles (build
relationships, prevent escalation):
• Obliging/Accommodating
• Compromising
• Integrating/Collaborating
Assertive styles (protect against
exploitation):
• Dominating/Competing
• Integrating/Collaborating
Perspectives on Negotiation Styles
Integrating/Collaborating:
• Best for preserving advantages of
cooperation
• Best for preserving own interests
Perspectives on Negotiation Styles
Mutual styles (other disputant must
cooperate to use successfully):
• Compromising
• Integrating/Collaborating
Unilateral styles (can use regardless of
other disputant’s style):
• Avoiding
• Obliging/Accommodating
• Dominating/Competing
Getting “the Other Team” to Collaborate
• Convince “other team” that collaborating will be
better than the alternatives
• Educate other team about collaboration
• Convince other team you
won’t take advantage of its
decision to be cooperative
• Be ready to protect your
team, or, at least, make sure
that the potential benefits of
your behavior will outweigh
the risks
The Best Negotiators . . .
• Use all five styles effectively
• Know when to use each style
• Are effective in convincing
others to use
Integrating/Collaborating
Things to Remember
About Negotiation
• Negotiators are not always
consistent or purposeful
• Effective negotiation requires
effective use of power
Increasing Expert Power
• Educate yourself
• Prepare your case
• Diagnose your conflict
• Know your BATNA
BATNA
• Best
• Alternative
• To a
• Negotiated
• Agreement
What Is a BATNA?
• The best I can expect to do if this
negotiation fails
• The point at which it’s not useful to
continue this negotiation
• If I can’t do at least as well as my
BATNA in this negotiation, then I
should not continue negotiating
Advantages of Knowing Your BATNA
• A “bottom line” is arbitrary but a
BATNA is rational
• Will keep you from settling for too little
• Will keep you from walking away from
a good deal
• Having your BATNA in mind keeps you
calm during negotiation
Advantages of Knowing Other’s BATNA
• Anticipate what other is likely to do
• Help you accurately assess
whether other is cooperating or
trying to exploit
• Tailor win-win proposals other is
more likely to accept
Power and the BATNA
• More power = better BATNA
• BATNA clarification = expert
power
• Knowing your BATNA translates
to better use of your power
(because you can act with
precision)
Using Your BATNA
• Assess your BATNA
• Maximize your BATNA
BATNA Assessment
• Build your interest tree.
• Generate list of possible
alternatives to negotiating an
agreement with other (your
“ATNAs”)
• Clarify the ATNAs and adjust for
uncertainty
• Maximize the options
• Choose the best one
How Are BATNAs Used? Example
• You are negotiating with Sam’s Auto to
purchase a car.
• He will sell you a 2000 Toyota Camry
for $11,000 plus your 1996 Hyundai in
trade.
• Should you say YES, NO, or negotiate
further?
• To answer the question, use BATNA
analysis
Example (cont’d)
• Start your analysis well before going to
Sam’s
• Step 1. Build your interest tree
Revised Interest Tree for Auto Purchase
Nice
Japanese
compact
Want a car
that’s
reliable
Less than
$8,000 out
of pocket
Belongingness
Deficiency
needs
Don’t want
to overpay
Don’t want
to be
cheated
Get a good
price for my
Hyundai
Air
conditioning
Basic safety
Not break
down –
commute to
work
Not too high
mileage
(none – I
haven’t
negotiated
yet)
Selfactualization
Have personal
transportation
Only have
$9,000 in
account –
don’t want
to try the
impossible!
Comfort
while I
commute
People
should play
fair in
business
I ought to
be frugal
Esteem
Survive
work, get
ahead,
career
Thou shalt
not steal or
cheat as a
consumer
Justice
Cassette
deck
POSITIONS
ASPIRATIONS
INTERESTS
PRINCIPLES
and VALUES
NEEDS
Account for Uncertainties
• It’s useless as an ATNA unless you can
determine what the outcome will be
Uncertainties – Litigation ATNAs
• Litigation ATNAs common in legal disputing
• Use case valuation
Recurrent Themes in
Conflict Diagnosis
• Sources of bias and inaccuracy
when participating in an
interpersonal conflict
• Seven steps of social behavior
• Themes of conflict diagnosis
Conflict is never quite
what it seems
Interpersonal conflict is like…
–An iceberg
–Funny glasses
–A tornado
Interpersonal Conflict Is Like
an Iceberg
• What’s most
important is
usually
hidden
Interpersonal Conflict Is Like
Funny Glasses
• Interpersonal conflict creates
predictable errors of perception
and judgment
What Is The
Other Disputant
Thinking?
Result: My beliefs about his or
her motives
My preconceived notions
and beliefs about the conflict
and disputant
My observations of the
other disputant during the
conflict
Common Errors
of Perception
and Judgment
During Conflict
The other intended to
do exactly what he or
she did.
The other’s behavior is
simple and unambiguous
The other had an evil
motive
Seven Steps of Social Behavior
1. Social stimulus
2. Disputant receives
stimulus
3. Stimulus
interpretation
4. Option generation
5. Weighing options
6. Disputant chooses
7. Disputant acts; new
stimulus created
Important Metaphor:
Interpersonal Conflict
• Conflict as
iceberg: what’s
important often
happens beneath
the surface
Sources of Conflict
6. Different conflict
1. Resource conflicts
orientations
2. Conflicts over facts
7. Structural or
and law
interpersonal
3. Preferences and
power
Nuisances
8.
Identity
4. Differing attributions
9. Values
of causation
10. Displaced and
5. Communication
misattributed
difficulties
Keep These Ideas in Mind
• Conflict usually springs from
multiple sources
• Often the most obvious source isn’t
the most important
• You must identify and address ALL
sources, otherwise the conflict is
likely to fester
The Feuding Business Partners
Partner 1 (does
day-to-day work)
The conflict:
allocating
revenues
Partner 2
(supplied the
venture capital)
The tip of the iceberg: a resource and data-type conflict (who’s entitled to
how much revenue?)
What’s beneath it: threats to identity and self-concept
Conflict Diagnosis
Step 4. Assess the
character of the conflict as
constructive or destructive.
What steps can be taken to
influence the cycle?
What
Is the Metaphors:
Important
Other Disputant
Salient
metaphors
Interpersonal
ConflictResult: my beliefs about his or
Thinking?
her motives
Conflict Can Be Like Wearing
My preconceived notions
Distorting
and beliefs - aboutGlasses
the
conflict and disputant
•Participants use the conflict
to draw inferences about
motivesinferences are
•These
distorted
•Self-Fulfilling Prophecies
are created.
My observations of the
other disputant during the
conflict
Deutsch's Theory – Summary
• Conflict is either cooperative or
competitive
• Cooperation is better than competition
• Perception becomes reality in
cooperation and competition (“Deutsch’s
crude axiom”).
• Cooperation easily evolves into
competition, but not vice versa
Deutsch's Theory –
Part 1
“Conflict is either
cooperative or
competitive”
Cooperation and Competition
Cooperation: I believe that if
you are helped, it helps me
(promotive interdependence)
Competition: I believe that if
you are helped, it harms me
(contrient interdependence)
How Conflict Is Characterized
in the Minds of the Disputants
• Cooperation: as a joint
problem to be solved
• Competition: as a contest
that only one person can win
Communication in
Cooperation and Competition
• Cooperation: open, honest
communication of relevant
information – to promote selfinterest
• Competition: closed, misleading,
minimal – due to fear of exploitation
Coordination of Effort in
Cooperation and Competition
• Cooperation: characterized by
efforts pooled to solve the mutual
problem
• Competition: characterized by
duplication of effort and minimal
coordination
Efforts on One Another’s Behalf
in Cooperation and Competition
• Cooperation: characterized by
efforts of each disputant to help the
other
• Competition: characterized by
efforts of each disputant to obstruct
the other
Responses to One Another’s
Suggestions and Proposals
• Cooperation: suggestions and
proposals approved or taken at
face value
• Competition: suggestions and
proposals viewed with suspicion,
devalued, rejected
Reactive Devaluation
Suggestion or proposal
made by other disputant
is devalued because
other disputant is the
source of the suggestion
Feelings of Disputants for
One Another in Cooperation
and Competition
• Cooperation: breeds feelings of
friendship between disputants
• Competition: breeds hostility
between disputants
Cooperation and Competition:
Effects of Helping Other
Disputant on One’s Ego
• Cooperation: helping gives boost
to the ego
• Competition: helping feels like loss
of face, feels intolerable
Perceptions of Similarity and
Difference in Cooperation and
Competition
• Cooperation: similarities
exaggerated; differences minimized
• Competition: differences
emphasized; similarities minimized
or rendered invisible
Task Focus and Person
Focus in Cooperation
and Competition
• Cooperation: disputants tend to focus
on completing the task
• Competition: disputants tend to focus
on beating each other rather than on
attaining personal goals
Productivity and Containment
in Cooperation and Competition
• Cooperation: productivity maximized;
conflict contained
• Competition: productivity impaired;
conflict escalates and spreads
Meta-Conflict;
Meta-Dispute
An interpersonal conflict
(dispute) about the
handling or course of an
interpersonal conflict
Polarization
The tendency of neutral
or moderate bystanders
in a conflict to be
pressured into siding
with one disputant or the
other
Deutsch's Theory
“Cooperation is
better than
competition”
Deutsch’s Theory:
Cooperation’s Advantages
• More efficient: less expensive, less
duplication of effort, less effort directed
at mutual harm
• More effective results
• Protection of relationships
• Psychological benefits
• “Psychological ownership” of
settlements results in better compliance
Deutsch's Theory – Part
3
“Perception becomes
reality in cooperation
and competition
(‘Deutsch’s crude
axiom’)”
Deutsch’s Crude Axiom
“Conflict becomes
what you think it is!”
• If you think it’s cooperative, it
will become more cooperative
• If you think it’s competitive, it
will become more competitive
The Cooperation
Cycle
Other disputant given
due credit for
successes
Perceived promotive
interdependence:
Belief that by helping other
disputant, one's own goals are
promoted
Disputants try to help
one another - in part,
to improve one’s
own situation
Feelings of
friendship
generated
Improved
productivity
Focus on
the joint
task
Perception that
goals, ideas,
values are
similar
Efficient
division of
needed tasks
Information
shared
openly and
honestly
Respect of other
disputant's suggestions:
basic trust
The Competition Cycle
Perceived contrient
interdependence:
Belief that by helping other
disputant, one's own goals
are impeded
Other disputant
blamed for lack
of progress
Focus on beating
other disputant
Disputants obstruct one
another
Impaired
efficiency and
productivity
Disputants hide
information, mislead
one another
Duplication of tasks by
mistrustful disputants
Feelings of hostility &
hatred generated
Perception that goals, ideas,
values are dissimilar; other
seen as “alien,” “evil”
Disputants
mistrust one
another
Deutsch's Theory
“Cooperation easily
evolves into
competition, but not
vice versa”
How the Cooperation
Cycle Is Disrupted
Other disputant given
due credit for
successes
Perceived promotive
interdependence:
Belief that by helping other
disputant, one's own goals are
promoted
Improved
productivity
Event creating suspicion or
Focus on
mistrust
the joint
Disputants try to help one
task
another - in part, to
improve one’s own
situation
Feelings of
friendship
generated
Perception that
goals, ideas,
values are
similar
Efficient
division of
needed tasks
Information
shared
openly and
honestly
Respect of other
disputant's suggestions:
Trust shaken
basic trust
A Competition Cycle
Begins
Perceived contrient
interdependence:
Belief that by helping other
disputant, one's own goals
are impeded
Other disputant
blamed for lack
of progress
Focus on beating
other disputant
Disputants obstruct one
another
Impaired
efficiency &
productivity
Disputants hide
information, mislead
one another
Duplication of tasks by
mistrustful disputants
Feelings of hostility &
hatred generated
Perception that goals, ideas,
values are dissimilar; other
seen as “alien”, “evil”
Disputants start
to mistrust one
another
Implications of Deutsch’s Theory
for Legal and ADR Professionals
• Trial and adversarial negotiation have
substantial disadvantages (usefulness of
ADR)
• Using Deutsch’s crude axiom: changing
perception can improve cooperativeness
(basis of many ADR techniques)
• Preventing conflict escalation is easier than
mopping up later! (balance early ADR
intervention against “ripeness”)
Strategy 2: Principled
Negotiations
• From Getting to Yes, key elements:
– Focus on interests, not positions:
• Interests = needs, desires, concerns, fears that lead to “why”
• Positions = specific demand
– Separate people from positions
• People negotiate – are affected by egos, feelings, anger
• “Step into their shoes” to discover their reasoning
– Focus on objective criteria
• Facts, principles, standards can be used to frame an offer
– Develop mutual-gains options
• A settlement must be superior to no agreement for both
parties
• Propose options with gains for both parties