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The Language and Psychology of Negotiations Sayyed Mohsen Fatemi, Ph.D. Harvard University University of Toronto

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1 The Language and Psychology of Negotiations Sayyed Mohsen Fatemi, Ph.D. Harvard University University of Toronto

2 Time, Complexity, Creating and Claiming Values

3 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?”

4 Common Nonverbal Behaviors

5 Tactics for Success: Practice Active Listening Active Listening = focus on what the other person is saying, understanding both the content and emotion

6 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

7 The Four Ears of Listening

8 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

9 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

10 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

11 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

12 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 5-16

13 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 5-17

14 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

15 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?”

16 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

17 Conflict Diagnosis Identify the underlying interests of the participants in the conflict.

18 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

19 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

20 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.

21 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

22 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

23 Positions Aspirations Underlying interestsPrinciples, values Basic human needs The “Conflict Onion”

24 I’d take anything over $10,000 if I can avoid court! ASPIRATIONS Get paid as soon as possible POSITION I demand $20,000 or I sue! PRINCIPLES and VALUES People should be fairly paid Wrongdoers should be punished Esteem needs Identity needs Deficiency needs (food, shelter, safety, clothing, etc.) NEEDS Security needs Get fair settlement Get back out-of- pocket losses INTERESTS Avoid time, expense of court Need money now: can’t pay rent Avoid court: risky! Brother-in-law will think I’m spineless if I don’t get good result Interest Tree Example

25 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

26 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.

27 Power Tools and Magic Keys Using conflict diagnosis to understand interpersonal conflict – information for legal professionals Selecting a dispute resolution forum

28 Using Conflict Diagnosis Is it necessary? Is it possible? Techniques for incorporating conflict diagnosis into legal advocacy

29 Invisible Veil Considerations Reasons for needing conflict diagnosis are often hidden Conflict escalation obscures important information and disempowers participants

30 “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

31 Changing Perspectives Legal scholars commenting on limits of adversary processes: –Collaborative law movement

32 “Persuade” directions Decision makers Other participants Disputant Negotiation

33 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

34 COOPERATION High Concern for Other COMPETITION High Concern for Self Negotiation style Negotiation style Negotiation style Conflict behavior can be assertive, or cooperative, but not both Cooperation and Competition

35 Concern for Self Concern for Other high low Avoiding Obliging Dominating Compromising Integrating Conflict behavior can be assertive, cooperative, both, or neither Dual-Concern Negotiation Theory

36 Cooperative styles (build relationships, prevent escalation): Obliging/Accommodating Compromising Integrating/Collaborating Assertive styles (protect against exploitation): Dominating/Competing Integrating/Collaborating Perspectives on Negotiation Styles

37 Integrating/Collaborating: Best for preserving advantages of cooperation Best for preserving own interests Perspectives on Negotiation Styles

38 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 Perspectives on Negotiation Styles

39 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 Getting “the Other Team” to Collaborate

40 Use all five styles effectively Know when to use each style Are effective in convincing others to use Integrating/Collaborating The Best Negotiators...

41 Negotiators are not always consistent or purposeful Effective negotiation requires effective use of power Things to Remember About Negotiation

42 Educate yourself Prepare your case Diagnose your conflict Know your BATNA Increasing Expert Power

43 Best Alternative To a Negotiated Agreement BATNA

44 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 What Is a BATNA?

45 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 Your BATNA

46 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 Advantages of Knowing Other’s BATNA

47 More power = better BATNA BATNA clarification = expert power Knowing your BATNA translates to better use of your power (because you can act with precision) Power and the BATNA

48 Assess your BATNA Maximize your BATNA Using Your BATNA

49 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 BATNA Assessment

50 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 How Are BATNAs Used? Example

51 Start your analysis well before going to Sam’s Step 1. Build your interest tree Example (cont’d)

52 ASPIRATIONSPOSITIONS PRINCIPLES and VALUES NEEDSINTERESTS (none – I haven’t negotiated yet) Less than $8,000 out of pocket Get a good price for my Hyundai Not too high mileage Nice Japanese compact Air conditioning Cassette deck Don’t want to be cheated Not break down – commute to work Survive work, get ahead, career Want a car that’s reliable Don’t want to overpay Comfort while I commute Only have $9,000 in account – don’t want to try the impossible! Justice Deficiency needs Esteem Basic safety People should play fair in business Thou shalt not steal or cheat as a consumer I ought to be frugal Revised Interest Tree for Auto Purchase Have personal transportation Belongingness Self- actualization

53 It’s useless as an ATNA unless you can determine what the outcome will be Account for Uncertainties

54 Litigation ATNAs common in legal disputing Use case valuation Uncertainties – Litigation ATNAs

55 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

56 –A tornado –An iceberg –Funny glasses Conflict is never quite what it seems Interpersonal conflict is like…

57 What’s most important is usually hidden Interpersonal Conflict Is Like an Iceberg

58 Interpersonal Conflict Is Like Funny Glasses Interpersonal conflict creates predictable errors of perception and judgment

59 My preconceived notions and beliefs about the conflict and disputant My observations of the other disputant during the conflict Result: My beliefs about his or her motives What Is The Other Disputant Thinking?

60 The other’s behavior is simple and unambiguous The other had an evil motive The other intended to do exactly what he or she did. Common Errors of Perception and Judgment During Conflict

61 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

62 Important Metaphor: Interpersonal Conflict Conflict as iceberg: what’s important often happens beneath the surface

63 Sources of Conflict 6.Different conflict orientations 7.Structural or interpersonal power 8.Identity 9.Values 10.Displaced and misattributed 1.Resource conflicts 2.Conflicts over facts and law 3.Preferences and Nuisances 4.Differing attributions of causation 5.Communication difficulties

64 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

65 The Feuding Business Partners Partner 1 (does day-to-day work) Partner 2 (supplied the venture capital) The conflict: allocating revenues 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

66 Conflict Diagnosis Step 4. Assess the character of the conflict as constructive or destructive. What steps can be taken to influence the cycle?

67 Salient metaphors Important Metaphors: Interpersonal Conflict Participants use the conflict to draw inferences about motives Conflict Can Be Like Wearing Distorting Glasses These inferences are distorted Self-Fulfilling Prophecies are created. What Is the Other Disputant Thinking? My preconceived notions and beliefs - about the conflict and disputant My observations of the other disputant during the conflict Result: my beliefs about his or her motives

68 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 – Summary

69 “Conflict is either cooperative or competitive” Deutsch's Theory – Part 1

70 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) Cooperation and Competition

71 Cooperation: as a joint problem to be solved Competition: as a contest that only one person can win How Conflict Is Characterized in the Minds of the Disputants

72 Communication in Cooperation and Competition Cooperation: open, honest communication of relevant information – to promote self- interest Competition: closed, misleading, minimal – due to fear of exploitation

73 Cooperation: characterized by efforts pooled to solve the mutual problem Competition: characterized by duplication of effort and minimal coordination Coordination of Effort in Cooperation and Competition

74 Cooperation: characterized by efforts of each disputant to help the other Competition: characterized by efforts of each disputant to obstruct the other Efforts on One Another’s Behalf in Cooperation and Competition

75 Cooperation: suggestions and proposals approved or taken at face value Competition: suggestions and proposals viewed with suspicion, devalued, rejected Responses to One Another’s Suggestions and Proposals

76 Reactive Devaluation Suggestion or proposal made by other disputant is devalued because other disputant is the source of the suggestion

77 Cooperation: breeds feelings of friendship between disputants Competition: breeds hostility between disputants Feelings of Disputants for One Another in Cooperation and Competition

78 Cooperation: helping gives boost to the ego Competition: helping feels like loss of face, feels intolerable Cooperation and Competition: Effects of Helping Other Disputant on One’s Ego

79 Cooperation: similarities exaggerated; differences minimized Competition: differences emphasized; similarities minimized or rendered invisible Perceptions of Similarity and Difference in Cooperation and Competition

80 Cooperation: disputants tend to focus on completing the task Competition: disputants tend to focus on beating each other rather than on attaining personal goals Task Focus and Person Focus in Cooperation and Competition

81 Cooperation: productivity maximized; conflict contained Competition: productivity impaired; conflict escalates and spreads Productivity and Containment in Cooperation and Competition

82 Meta-Conflict; Meta-Dispute An interpersonal conflict (dispute) about the handling or course of an interpersonal conflict

83 Polarization The tendency of neutral or moderate bystanders in a conflict to be pressured into siding with one disputant or the other

84 “Cooperation is better than competition” Deutsch's Theory

85 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: Cooperation’s Advantages

86 “Perception becomes reality in cooperation and competition (‘Deutsch’s crude axiom’)” Deutsch's Theory – Part 3

87 “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 Deutsch’s Crude Axiom

88 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 Perception that goals, ideas, values are similar Improved productivity Other disputant given due credit for successes Respect of other disputant's suggestions: basic trust Information shared openly and honestly Efficient division of needed tasks Focus on the joint task The Cooperation Cycle

89 Perceived contrient interdependence: Belief that by helping other disputant, one's own goals are impeded Disputants obstruct one another Feelings of hostility & hatred generated Perception that goals, ideas, values are dissimilar; other seen as “alien,” “evil” Impaired efficiency and productivity Other disputant blamed for lack of progress Disputants mistrust one another Disputants hide information, mislead one another Duplication of tasks by mistrustful disputants Focus on beating other disputant The Competition Cycle

90 “Cooperation easily evolves into competition, but not vice versa” Deutsch's Theory

91 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 Perception that goals, ideas, values are similar Improved productivity Other disputant given due credit for successes Respect of other disputant's suggestions: basic trust Information shared openly and honestly Efficient division of needed tasks Focus on the joint task Event creating suspicion or mistrust Trust shaken How the Cooperation Cycle Is Disrupted

92 Perceived contrient interdependence: Belief that by helping other disputant, one's own goals are impeded Disputants obstruct one another Feelings of hostility & hatred generated Perception that goals, ideas, values are dissimilar; other seen as “alien”, “evil” Impaired efficiency & productivity Other disputant blamed for lack of progress Disputants start to mistrust one another Disputants hide information, mislead one another Duplication of tasks by mistrustful disputants Focus on beating other disputant A Competition Cycle Begins

93 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”) Implications of Deutsch’s Theory for Legal and ADR Professionals

94 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


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