Negotiation 101: A Primer
Cynthia Romano
PCS, LLC
393 Totten Pond Road, Suite 202, Waltham, MA
345 Third Avenue, Sixth Floor, New York, NY
I.
What is Negotiation?
Many of us consider the art of negotiation to be a valuable item in our strategic toolkit.
But, what does the word actually mean, how exactly (and why) does the process work, and why
(or when) is negotiation better than other dispute resolution options available?
Negotiation is a method of resolving a dispute between two or more parties; specifically,
it is the practice of reaching an agreement through discussion and compromise. According to the
Collins English Dictionary, the verb negotiate is defined as “to work or talk (with others) to
achieve a transaction, an agreement, etc.”1 However, the dictionary alternatively defines the
word as “to succeed in passing through, around, or over” as in “to negotiate a mountain pass”. In
this alternative definition is found the true meaning of the word: to greet an obstacle directly and,
through any variety of tactics aimed at creative and persistent give and take, to find a way
through, around or over to achieve success.
So, what differentiates negotiation from other forms of bargaining or battling?
Negotiation is a dialogue between two or more parties intended to reach an understanding,
resolve a difference, or gain advantage in order to satisfy various interests of parties at odds. The
process of negotiation is intended to be conducted by the parties directly (unlike mediation and
arbitration, both of which employ a third party) and the outcome of negotiation is intended to be
a compromise in which one party “gives” on some items in order to “gain” on others (in contrast
to litigation, which is most often intended to result in an all or nothing win).
Whether true or not in reality, negotiation is perceived to be a more gentlemanly
approach to issue resolution in which each party comes away with something, specifically, what
1
Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000, 2003.
is most important to each through strategic compromise. As J. Paul Getty said: “You must never
try to make all the money that‟s in a deal. Let the other fellow make some money too, because if
you have a reputation for always making all the money, you won‟t have many deals.”
The remainder of this primer will outline the frameworks used to understand dispute
resolution in general, compare other dispute resolution alternatives to negotiation, and conclude
by describing how and why the process of negotiation works from theory to practical technique.
II.
Dispute Resolution Frameworks and Alternatives
If negotiation is a direct “give and take” between parties to achieve success through
compromise, what are some other options for achieving success in a dispute?
Experts often divide dispute resolution tactics into two broad types: adjudicative and
consensual. Adjudicative processes such as litigation or arbitration involve a third party – judge,
jury or arbiter – determining the outcome.
Attorneys usually play a prominent role in
adjudicative dispute resolution and the focus of the process is on the presentation of the evidence
as well as the legal rights of the parties. Consensual processes such as collaborative law,
mediation, conciliation or negotiation involve the parties attempting to reach agreement
themselves, often outside the scope of legal authority and often, as with negotiation, without the
help of a third party. While physical intimidation or violence could be considered a dispute
resolution technique on the adjudicative/consensual spectrum (and no doubt it is on the
international scene), we must, in the civil context, rule this technique out of the toolkit for many
reasons, including that violence rarely ends a dispute but, rather, tends to escalate it.
Another way to frame dispute resolution options is to discuss the distinction between
judicial and extrajudicial methods of resolving disagreements. Judicial dispute resolution is
conducted within and governed by the structure of the legal system and includes options such as
litigation or arbitration. Typically, judicial dispute resolution is adversarial and the verdict is
binding. Extrajudicial dispute resolution, also known as alternative dispute resolution (“ADR”),
includes mediation and negotiation, among others. ADR emerged after World War II and is
generally believed to be more flexible, faster, and less expensive than a judicially governed
process. As a result, ADR has grown in popularity since its emergence almost 70 years ago and
is now used frequently as an alternative (or complement) to litigation.
Below is a description of the various dispute resolution options commonly used today.
Technique
JudicialAdjudicative- Notes
Extrajudicial Consensual
Litigation
Judicial
Adjudicative
A process by which an action is brought in a
court of law by a plaintiff, a party who claims to
have incurred loss as a result of another‟s
actions, and who demands a legal or equitable
remedy. The defendant is required to respond. If
the plaintiff is successful, judgment is rendered
in the plaintiff's favor and a variety of court
orders may be issued to enforce a right, award
damages, or impose an injunction to prevent or
compel an act. A declaratory judgment may also
be issued to prevent future legal disputes.
Arbitration
Judicial
Adjudicative
A neutral, privately paid, third party reviews the
case and renders a decision, which is typically
legally binding and enforceable. Non-binding
arbitration is similar to mediation except the
arbiter remains removed and does not help the
parties find a middle ground. Arbitration can
either be mandatory, usually resulting from a
pre-existing contract, or voluntary.
Collaborative
Law
Judicial
Consensual
A legal process enabling divorcing couples to
avoid the uncertain and often hostile and
contested outcome of court and achieve a
settlement that best meets the specific needs of
both parties and their children. The voluntary
process involves a contract ("participation
agreement"), binding each to the process and
disqualifying their respective lawyer's right to
represent either one in future family related
litigation. The collaborative process can be used
to facilitate a broad range of other family issues.
Mediation
Extrajudicial Consensual
In contrast to negotiation, mediation has a
structure, timetable and dynamics that "ordinary"
negotiation lacks and, further, a third party (the
mediator) helps the parties negotiate a
settlement. The process is private, confidential,
and enforceable if agreed by the parties (making
it akin to arbitration). Participation is typically
voluntary, although in some courts, mediation is
mandatory. The mediator facilitates rather than
directs the process using various techniques to
improve dialogue and generate agreement. As
the practice has gained popularity and
acceptance, training programs, certifications and
licensing followed, producing trained,
professionals committed to the practice.
Conciliation
Extrajudicial Consensual
The disputing parties use a third party, the
conciliator, who meets with the parties
separately to help them resolve their differences
through interpreting technical issues, improving
communication, exploring options, etc. Unlike
arbitration, conciliation has no legal standing,
cannot seek evidence or call witnesses beyond
what the parties present, usually generates no
decision, and makes no award.
Negotiation
Extrajudicial Consensual
Negotiation is similar to conciliation in that it
uses dialogue to resolve differences except that
the goal of negotiation is to gain advantage
(rather than understanding) and typically the
parties dialogue directly, whereas mediation or
conciliation uses a third party to assist in finding
a middle ground. Additional information can be
found throughout the rest of this primer.
III.
Negotiation Theory: Win-Win or Win-Lose?
One branch of negotiation theory, as described by Fisher, Ury and Patton,2 divides
2
Fisher, Roger and William Ury. Getting to Yes: Negotiating Agreement Without Giving In, 2nd edition, ed. Bruce
Patton, (New York: Penguin Books, 1991).
negotiation techniques into two distinct approaches: distributive (win-lose) or integrative (winwin). Most negotiators utilize a mix of the two approaches, depending on the circumstance or
stage of the negotiation, and each approach has pros and cons. But, despite their differences,
these two approaches to negotiation are both aimed at mutual adjustment3 as the negotiation
unfolds, as mutual adjustment is the means by which changes in position, leverage, and outcome
become possible. Just as a chess player, in an effort to gain advantage and control of the board,
adjusts his strategy as his opponent acts and reacts, so too does a negotiator seek mutual
adjustment to gain advantage and control in the negotiation.
Distributive negotiation is sometimes called positional or hard-bargaining negotiation and
is most often compared to haggling in a marketplace. In this approach to negotiation, each party
adopts an extreme stance to start, knowing the position or proposal will not be accepted, and then
uses guile, bluffing, and brinksmanship in order to cede as little as possible before reaching a
deal. What differentiates this form of negotiation is the perception (correctly or incorrectly) that
the outcome will distribute a fixed amount of value such that every gain made by one party in the
negotiation results in an equivalent loss by the other party, hence the win-lose or fixed-pie
moniker attached to the distributive approach. Distributive negotiation is typically adversarial
and, therefore, is most often employed by parties who neither have a prior history of interaction
nor expect to have interaction going forward.
Integrative negotiation, on the other hand, is often referred to as interest-based or
principled negotiation; it is also called “win-win” negotiation as it seeks to improve the quality
and likelihood of agreement by expanding the pie during the course of negotiation rather than
starting with and negotiating for the largest slice of a fixed pie, as in distributive negotiation.
3
Maiese, Michelle. Negotiation in Beyond Intractability eds Guy Burgess and Heidi Burgess. (The Beyond
Intractability Project, The Conflict Information Consortium, University of Colorado, 2003-2012).
Key components of the integrative approach are:

Focus on underlying interests of the parties rather than an arbitrary starting position;

Approach negotiation as a shared problem rather than a personalized battle; and,

Insist upon adherence to objective, principled criteria as the basis for agreement.
Integrative negotiation typically involves a substantial amount of problem solving around
how to expand the pie for each party and, as a result, tends to be more cooperative and partneroriented rather than adversarial. As a result, this approach requires a higher degree of trust and
is most often used by disputing parties who either have a prior history of interaction or expect to
have ongoing interaction in the future.
There is not a right or wrong approach to use when negotiating. Fisher, et al, argue that
almost any dispute can be resolved with an integrative, cooperative approach while Lax and
Sebenius4 believe that negotiations first require creating value and then should conclude by
claiming value i.e. first a negotiator works cooperatively to expand the pie but, in the end, must
use a competitive approach to claim value. Most theorists believe that each approach has value
provided the approach matches the circumstance of the dispute at hand.
IV.
What Kind of a Negotiator Are You?
Negotiation theorists have identified, generally, three basic styles of negotiators; do you
see yourself in any of the styles described below?

Hard bargainer – use pressure creation, method is adversarial (favor distributive);

Soft bargainer – is conflict avoidant, goal is agreement (favor integrative); and,

Principled bargainer – objective criteria, seek fairness, adherence to standards, etc
(favor neither but rather focus on objectivity and fairness, regardless of approach)
4
Lax, David A. and James K. Sebenius. "Interests: The Measure of Negotiation," pp. 161-180 in Negotiation Theory
and Practice, eds. J. William Breslin and Jeffrey Z. Rubin, (Cambridge: Program on Negotiation Books, 1991), 161.
While all styles are valid and can lead to success, a tension exists between creating and
claiming value. Competitive strategies used to claim value tend to undermine cooperation, while
a cooperative approach makes one vulnerable to competitive bargaining tactics. The tension that
exists between cooperation and competition in negotiation is familiar to us from our knowledge
of game theory and is known as "The Negotiator's Dilemma."

If the parties cooperate, both will have good outcomes.

If one party cooperates while the other competes, the cooperator gets a terrible
outcome while the competitor gets a great outcome.

If the parties compete, they each achieve mediocre outcomes.

Given uncertainty about the other party‟s approach, each party‟s best choice is to
compete.

However, if they both compete, both parties end up worse off. 5
As Maiese notes, “[t]his is the „payoff structure‟ of the prisoner's dilemma game, which is used
to investigate how people choose between cooperating and competing in different situations.”6
In an overlapping paradigm with the styles of negotiation identified above, R.G. Shell
identified other styles of/responses to negotiation for a total of five different types of
negotiators.7 Again, do you see yourself in one or more of these styles?
1. Accommodating: Accommodating negotiators enjoy solving the other party‟s
problems and preserving relationships. They are sensitive to the well-being of the
other party and expect the same in return; as a result, they can feel taken advantage of
when the other party does not similarly emphasize the relationship.
5
Lax, David and James K. Sebenius. The Manager as Negotiator: Bargaining for Cooperation and Competitive
Gain (New York: The Free Press, 1986), 29.
6
Maiese, (2003).
7
Shell, R.G., Bargaining for Advantage (New York, NY: Penguin Books, 2006).
2. Avoiding: Avoiders do not like to negotiate and don‟t do it unless truly required. But,
when necessary to negotiate, these individuals typically defer and dodge the
confrontational aspects of negotiating, a behavioral pattern that often leads to the
perception that they are tactful and diplomatic.
3. Collaborating: Collaborators enjoy negotiations that involve solving tough problems
in creative ways and are usually quite skilled at using negotiations to understand the
other party; the downside to this style is the tendency to create issues by turning the
simple into the complex.
4. Competing: Competitive negotiators never miss an opportunity to win something.
They have strong instincts for all aspects of negotiating and are often strategic but, on
the negative side, they often lose the benefit of expanding the pie and benefiting from
a cooperative approach by failing to appreciate the benefit of relationship in
negotiation.
5. Compromising: Compromisers are eager to close the deal by doing what is fair and
equal for all parties involved in the negotiation. This style can be useful when there is
limited time to complete a deal but these negotiators often wind up rushing the
process and may give too much too quickly.
As with approaches to negotiation, negotiation styles are often most effective when used in
combination depending on the issue being negotiated, the style of the other party, and the stage
of the negotiation.
V.
Why Use Negotiation and How Does it Work?
Negotiation is used as often as it is because it is faster and cheaper than litigation and,
additionally, it gives the parties more direct control and power over their destiny than other ADR
techniques discussed above. But, what tools (or techniques) are available to use and, given the
lack of legal authority driving the process, why do they work?
Techniques of negotiation are fairly well known and most people use a mix of techniques
depending on the specifics of the dispute and the parties; the art of negotiation is knowing when
to use which technique. Negotiator styles were outlined above but, for every style, there are
numerous tactics that can be employed to encourage mutual adjustment for a party‟s benefit.
According to Lewicki and Saunders, they include:8

Principled Clarity: straightforward presentation of demands or preconditions.

Cherry Picking: picking only the beneficial parts of a proposal or suggestion.

Leaning Back and Whispering: establishes a dominant physical position designed to
intimidate the other party.

Bidding: create an auction process designed to create competition with a goal of
winning for winning‟s sake.

Brinksmanship: one party aggressively pursues a set of terms to the point at which the
other negotiating party must either agree or walk away.

Bogey: pretend that an issue of little or no importance so that it can be traded later.

Chicken: propose extreme measures, often bluffs, to force the other party to chicken
out and give them what they want.

Defense in Depth: continual adding of concessions to the deal.

Deadlines: give the other party a deadline forcing them to make a decision.

Flinch: flinching is showing a strong negative physical reaction to a proposal. Seeing
a physical reaction is more believable than hearing someone saying, “I‟m shocked.”
8
Lewicki, R.J.; D.M. Saunders, J.W. Minton. Essentials of Negotiation (New York: McGraw-Hill Higher
Education. 2001), 86.

Good Guy/Bad Guy: this approach is typically used in team negotiations where one
member of the team makes extreme or unreasonable demands and the other offers a
more rational approach.

Highball/Lowball: depending on whether selling or buying, sellers or buyers use a
ridiculously high, or ridiculously low opening offer that will never be achieved.

The Nibble: nibbling is asking for proportionally small concessions that haven‟t been
discussed previously just before closing the deal.

Snow Job: overwhelm the other party with so much information that he or she has
difficulty determining which facts are important, and which facts are diversions.
Some of the strategies critical to preparing for a good negotiation as well as many of the
techniques listed above for succeeding at a negotiation are examined in greater detail by Judith
Elkin in “Everything Would Go More Smoothly if You‟d Just Do It My Way: Preparing for and
Conducting a Successful Negotiation.”9 Additionally, George Marcus, in his essay, “The Art and
Science Of Negotiation: An Essay On Rational And Not So Rational Economic Foundations”10
discusses the economic and theoretical underpinnings of the many negotiation tactics and
strategies that are discussed here and in Judith Elkin‟s article. Suffice to say, negotiation is,
essentially, a process of communication in which the parties aim to "send a message" to the other
side and influence each other.11 Power, and ultimately success, in negotiation lies in the
negotiator‟s ability to favorably affect someone else's decision regardless of style chosen or
technique employed.
9
Elkin, Judith. “Everything Would Go More Smoothly if You‟d Just Do It My Way: Preparing for and Conducting
a Successful Negotiation.” (ABI Northeast, 2013).
10
Marcus, George. “The Art and Science Of Negotiation: An Essay On Rational And Not So Rational Economic
Foundations.” (ABI Northeast, 2013).
11
Fisher, Roger, "Negotiating Power: Getting and Using Influence," pp. 127-140 in Negotiation Theory and
Practice, eds. J. William Breslin and Jeffrey Z. Rubin, (Cambridge: Program on Negotiation Books, 1991), 128.
VI.
Conclusion
There is not one right approach to dispute resolution. Nor is there a single style of
negotiator that will guarantee success. And, techniques used in successful negotiation vary
widely depending on the specifics of the dispute and the specifics of the parties negotiating.
However, over time it has become clear that the combination of factors that lead to successful
negotiation includes the following:
□ Have a thorough understanding of your client‟s case, its strengths and weaknesses.
□ Have a good alternative to the negotiation if talks break down.
□ Know the other party‟s interests and objectives, its strengths and weaknesses.
□ Listen, empathize, and communicate clearly and effectively with consistent messages.
□ Understand the cultural biases and negotiating style(s) of the other party.
□ Have (or create) a good working relationship with the other party.
□ Have (or develop) standards of legitimacy that engender the ability to influence.
□ Shape reasonable principals and proposals that can be agreed on without much debate
in order to put the other party in the mindset of “yes”.
In the final analysis, the best way to create success in a negotiation is “to invent a good solution
to the problem. This typically involves devising an ingenious solution that addresses the interests
of both sides” and, instead of “power over” the negotiator capitalizes on “power with” the other
party for mutual benefit.12
12
Dugan, Maire A. Power in Beyond Intractability eds. Guy Burgess and Heidi Burgess. (The Beyond Intractability
Project, The Conflict Information Consortium, University of Colorado, 2003-2012).