2. Negotiation & ADR
Handout
Prof. John Barkai William S. Richardson School of Law University of Hawaii

3. Negotiation & ADR
are
Professional
and
Personal
Skills

4. www2.hawaii.edu/~barkai
Google: John Barkai

5. Not everyone can be a great chef
But, everyone can learn to cook

7. “Even a sheet of paper has two sides”
Japanese Proverb

9. How many lawsuits are filed in the U.S. each year? Guess!

10. 95% of cases terminate without a trial
NOT 95% of cases settle
BUT
95% of cases terminate without a trial

11. What is the appropriate amount of Conflict?

12. CONFLICT IS LIKE WATER:. Too much causes damage to people and property
CONFLICT IS LIKE WATER:   Too much causes damage to people and property   Too little creates a dry, barren landscape devoid of life and color.    - Designing Conflict Management Systems - Cathy Costantino & Christina Sickles Merchant

13. All polishing is achieved by friction - Mary Parker Follett

15. Who has the Power?

16. The easiest way to improve your negotiation skills is to
Q________!

17. Open Ended Questions

18. Ask More, Get More
By Michael Alder
Is there anything else you can do for me? What else can you do for me? Can we accomplish the same thing for less money? Is that the best you can do? Do you have any discounts available? I made a mistake. What can you do for me?

19. Expand the pie

20. about Negotiation & ADR
Two Key Ideas
about Negotiation & ADR
1) Focus on Interests
not positions
2) Improve the
Communication
(information & temperature)

21. Interests Goals Needs Dreams Desires
Doo shoe e mu

22. Same bed, different dreams

23. Iceberg Theory
“Below the line” issues
Huge & invisible
Purposely hidden
Out of awareness

24. U.S. Declaration of Independence

25. Security
Sovereignty

26. GETTING TO YES Separate People from Problem Interests not Positions
Invent Options
Objective Criteria
BATNA

27. Dance Of Negotiation You must dance!
Creates social pressure to concede
It’s normal v. stubborn, unfair, they might not deal
“Take it or leave it” limits your ability to N & credibility
Your dance signals the value of your case
“Aim high; score high”

28. Communication
Presented by: Prof. John Barkai William S. Richardson School of Law University of Hawaii

30. What do you think is one of the most important issues facing
our country in the next 10 years?

31. Speaker
(Instructor)
Active Listener
(Student)
Continues
Comments 1
I had a terrible day today.
What I hear you saying is you had a terrible day today.
Yeah, that's what I said. Are you feeling OK today?
Classic active listening.
Uses introductory phrase. Repeats exact words. 2
... a terrible day?
Yeah, nothing went right, and then there was that thing with my boss.
Skips introductory phrase. Repeats a few of the exact words. 3
The boss screamed at me about some assignment.
... blamed by the boss?
Yeah, he was going on and on about it.
Paraphrased, but still not a complete sentence. 4
He was being unfair. I didn't even know what he was talking about.
... unfairly blaming you?
No, actually it did turn out to be my fault. But he shouldn't have acted like that with my co-workers around.
Speaker corrects inaccurate active listener. 5
How do you think you would feel if that happened to you?
... you are very disturbed about this.
Of course I am. No one should have to go through something like that.
Active listening used instead of answering the question. 6
[if they go on and on and on and on and on]
Wait a minute! Let me see if I understand you correctly.
Active listening is used to interrupt without offending.

32. Communication Techniques
Speaker
Listener
Technique
1. What do you think is one of the most important skills for negotiators?
Open-ended
Question
2. Ah, I'd say communication skills.
3. Tell me more about that.
Open-ended,
Follow-up Question
4. Sure. Negotiators need to be able to collect information and to persuade people. Of course they need to communicate to do that.
5. What do you mean by "collect information?"
Clarifying
6. Negotiators need to learn information from other people. So negotiators "collect" this information by asking appropriate questions and using other communication techniques.
7. Humm, hum.
Passive Listening
8. After they have collected the information they then use it in some way.
9. Can you be more specific?
Narrowing
10. Sure. When negotiators learn about the other side's interest, they can use that information during the negotiation.
11. That's helpful, keep going.
Facilitator
12. They use techniques like open-ended questions, follow-up questions, clarifying questions, and active listening.
13. How so?
14. They use these techniques to gather information from their opponent.
15. They collect the information by using these techniques?
Summarization
Active Listening
16. Yes, the good communicators collect the information which is an important foundation for the negotiation.
17. How do you feel about that?
Open-ended Question
Probe for Feelings
18. I think it is one of the most important things that negotiators do, and unfortunately, many negotiators neglect these skills.
19. So you think communication is important, but many negotiators neglect it?
20. Right. Negotiators should realize that good communication techniques can help them to be successful, and they should pay attention to, and practice good communication techniques.
21. Thanks. You have helped me to better understand your views about communication. And, I hope I have helped you demonstrate some of the techniques that you have talked about.

33. REFRAMING Negative Statement She talks too much
Reframed
She talks too much
She's so friendly and puts everyone at ease.
He argues so much
He has such strong convictions
She thinks she knows it all
He is so conceited
She too easygoing
He's so stingy
She spends too much money
He's too rigid
She can never sit still
She's too emotional

34. The Importance of Non-verbal Communication
55%
“body language”
38%
“tone of voice” 7%
“the words”
What Forms First Impressions
Albert Marabian- UCLA
Often stated as …………

35. Hostage Negotiation Gary Noesner http://www.garynoesner.com/

36. The key to hard negotiation situations is soft communication skills

37. Active Listening for Crisis Negotiations
- gather information
- develop rapport
- build trust

39. The response to impasse is …
Persistence, Persistence, Persistence.
Try it again even if it didn’t work before

40. Tactics Video

43. John H Wade Bond University, Australia
The Last Gap in Negotiations. Why is it Important? How can it be Crossed?
John H Wade
Bond University, Australia

44. Crossing the last gap Talk - try to convince – seldom works
Split Difference – (Take less than ½)
Expand the pie -subdivide the last gap
Make a donation (tax deductible)
Expanding the pie by an add-on offer - "What if I moved on….[this issue]?"
Refer to a third party arbitrator/judge/etc.
Chance - flip coin
Chance - Draw gradations from a hat – ¼, 1/3, 1/2, 2/3, ¾, etc.
Transfer the last gap to a third party (child, relative, etc.)

45. Crossing the last gap in negotiations Talk - try to convince – seldom works
Conditional offers and placating incremental fears
- "What if I could convince client to...? How would you respond?"
Pause - and speak to significant others
Pause - and schedule time for a specific offer
Defer division of last gap; divide rest
Sell last item at auction; split proceeds
Pick-a-pile; you cut, I choose
Skilled helper has a face -saving tantrum
File another motion or law suit – pursue pain and hope.

46. Changing Minds Role reversal Apologies
The Work of Mediators and Empirical Studies of Persuasion
James Stark & Douglas Frenkel
Persuasion by:
Role reversal
Apologies
Rhetorical questioning -a question that is asked in order to make a point
- but seems like direct statements are more effective
Direct statements - 2-sided messages w/ reasons why 1 side will win and explicit conclusions
Negative Emotions: Fear and Guilt
Group brainstorming
Sequential requests are best, either
- Foot-In-The-Door (a little at first, then for more) or
- Door-In-The-Face (ask for more than can be gotten first, then fall back) 46

47. 3 Slices of Differences
Culture
MBTI
Gender

48. What we grow up with, is “normal” to us.
Like a fish in water. Water is the culture
What we grow up with, is “normal” to us.

49. Cross Border National Ethnic Professional Gender Age – Generational Digital immigrants & natives Local v. Mainland Neighbor island v. Oahu Differences within HI “local” cultures

50. Cross-Cultural Negotiation
1) Different Cultural Interests and Values
2) Different Conversational Styles

51. Many patterns make the quilt of the world

52. Smart Bargaining: Doing Business with the Japanese Graham & Sano
Japan External Trade Organization's (JETRO) 52

53. Deborah Tannen Georgetown University Linguistics Professor
Many patterns make the quilt of the world
How language affects relationships
Patterns – Conversational Style

54. about Cross-Cultural Negotiation
You learned
(almost) everything
you need to know
about Cross-Cultural Negotiation
at home

55. Yo momma wears combat boots (hierarchy – competition - male pattern) Your sister tells secrets (closeness / rapport – female pattern) Your spouse can't communicate (Direct/indirect speech) (High / low context) Classic Male-Female conflicts

56. It’s not about the nail

57. Psychological Types & Negotiations: Conflicts and Solutions Suggested by the Myers-Briggs Type Indicator Prof. John Barkai William S. Richardson School of Law University of Hawaii

58. Characteristics of the Myers-Briggs Psychological Types
ISTJ
Serious, quiet, earn success by concentration and thoroughness. Practical, orderly, matter-of-­fact, logical, realistic, and dependable. See to it that everything is well organized. Take responsibility. Make up their own minds as to what should be accomplished and work toward it steadily, regardless of protests or distractions.
ISFJ
Quiet, friendly, responsible, and conscientious. Work devotedly lo meet their obligations. Lend stability lo any project or group. Thorough, painstaking, accurate. Their interests are usually not technical. Can be patient with necessary details Loyal, considerate, perceptive, concerned with how other people feel
INFJ
Succeed by perseverance, originality, and desire to do whatever is needed or wanted. Put their best efforts into their work. Quietly forceful, conscientious, concerned for others. Respected for their firm principles. Likely to be honored and followed for their clear convictions as to how best to serve the common good
INTJ
Usually have original minds and great drive for their own ideas and purposes. In fields that appeal to them, they have a fine power to organize a job and carry it through with or without help. Skeptical, critical, independent, determined, sometimes stubborn. Must learn to yield less important points in order to win the most important.
ISTP
Cool onlookers-quiet, reserved, observing and analyzing life with detached curiosity and unexpected flashes of original humor. Usually interested in cause and effect. How and why mechanical things work, and in organizing facts using logical principles.
ISFP
Refiring, quietly friendly. sensitive. kind, modest about their abilities. Shun disagreements, do not force their opinions or values on others. Usually do not care to lead but are often loyal followers. Often relaxed about getting things done, because they enjoy the present moment and do not want to spoil il by undue haste or exertion.
INFP
Full of enthusiasms and loyalties, but seldom talk of these until they know you well. Care about learning, ideas, language, and independent projects of their own. Tend to undertake too much, then somehow get it done. Friendly, but often too absorbed in what they are doing to be sociable. Little concerned with possessions or physical surroundings.
INTP
Quiet and reserved. Especially enjoy theoretical or scientific pursuits. Like solving problems with logic and analysis. Usually interested mainly in ideas, with little liking for parties or small talk. Tend to have sharply defined interests. Need careers where some strong interest can be used and useful.
ESTP
Good at on-the-spot problem solving. Do no, worry, enjoy whatever comes along. Tend to like mechanical things and sports, with friends on the side Adaptable, tolerant, generally conservative in values. Dislike long explanations. Are best with real things that can be worked, handled, taken apart, or put together.
ESFP
Outgoing, easygoing, accepting, friendly, enjoy everything and make things more fun for others by their enjoyment. Like sports and making things happen. Know what's going on and join in eagerly. Find remembering facts easier than mastering theories. Are best in situations that need sound common sense and practical ability with people as well as with things.
ENFP
Warmly enthusiastic, high-spirited, ingenious, imaginative. Able to do almost anything that interests them. Quick with a solution for any difficulty and ready to help anyone with a problem. Often rely on their ability to improvise instead of preparing in advance. Can usually find compelling reasons for whatever they want.
ENTP
Quick, ingenious, good at many things. Stimulating company, alert and outspoken. May argue for fun on either side of a question. Resourceful in solving new and challenging problems, but may neglect routine assignments. Apt to turn to one new interest after another. Skilful in finding logical reasons for what they want.
ESTJ
Practical, realistic, matter-of-fact, with a natural head for business of mechanics. Not interested in subjects they see no use for, but can apply themselves when necessary, Like to organize and run activities. May make good administrators, especially if they remember to consider others' feelings and points of view.
ESFJ
Warm-hearted, talkative, Popular, conscientious, born cooperators, active committee members. Need harmony and may be good at creating it. Always doing something nice for someone. Work best with encouragement and praise. Main interest is in things that directly and visibly affect People's lives.
ENFJ
Responsive and responsible. Generally feel real concern for what others think or want, and try to handle things with due regard for the other person's feelings. Can present a proposal or lead a group discussion with ease and tact. Sociable, popular, sympathetic. Responsive lo praise and criticism.
ENTJ
Hearty, frank, decisive, leaders in activities Usually good in anything that requires reasoning and intelligent talk, such as public speaking Are usually well informed and enjoy adding to their fund of knowledge. May sometimes appear more positive and confident than their experience in an area warrants.

59. Joke Prayers for Myers-Briggs Psychological Types
ISTJ
God, help me to begin
RELAXING
about little details
tomorrow at 11:41.32 am
ISFJ
Lord, help me to be
more laid back, and
help be to do it
exactly right!
INFJ
Lord help me
not be a perfectionist.
(Did I spell
that correctly?)
INTJ
Lord, keep me open
to others' ideas,
WRONG
though they maybe!
ISTP
God, help me to
consider
people's feelings,
even if most of them
are hypersensitive
ISFP
Lord, help me to
stand up for my
RIGHTS!
(if you don't
mind my asking)
INFP
finish
everything I
sta
INTP
Lord, help me be
less independent,
but let me
do it
MY way.
ESTP
God,
help me to take
responsibility
for my own actions,
even though they're
usually not my fault!
ESFP
Help me to
take things more
seriously
especially
parties & dancing
ENFP
Help me keep
my mind on one th---
Look! A Bird!
ing
at a time
ENTP
God, help me
follow established
procedures today.
On second thought,
I'll
settle for a few minutes.
ESTJ
God, help me to not try to
RUN everything.
But, if you
need some help,
JUST ASK!
ESFJ
Lord, give me
patience
and
I mean right
NOW!
ENFJ
God, help me to do
only what I can,
and trust you for the rest.
Do you mind putting that
in writing?
ENTJ
slow
downandnot
rushthrough
whatIdoAmen

60. Guesses of Psychological Types of Famous People
ISTJ
Sparky Anderson, Rosalynn Carter, Sam Donaldson, Jesse Helms, Jackie Joyner‑Kersee, Cathy Rigby, Jack Webb, U.S. Presidents: (most frequent type) George H. W. Bush, Calvin Coolidge, Dwight D. Eisenhower, Benjamin Harrison, Herbert Hoover, Andrew Johnson, George Washington
ISFJ
Louisa May Alcott, Alfred Lord Tennyson, Barbara Bush, Princess Diana, Charles Dickens, Queen Elizabeth II, Michael Jordan, Robert E. Lee, Ed McMahon, Mary Tyler Moore, Marie Osmond, O. J. Simpson, Kristi Yamaguchi, U.S. President William Howard Taft, Fictional: David Copperfield, Ophelia, Porky Pig, Watson (Sherlock Holmes' sidekick)
INFJ
Woody Allen, Clara Barton, Shirley Temple Black, Geoffrey Chaucer, Agatha Christie, Billy Crystal, Bob Dylan, Martin Luther King, Michael Landon, Shirley MacClaine, Florence Nightingale, Ryan O'Neal, Tom Selleck, Paul Stookey (Peter, Paul and Mary), Mother Teresa, Oprah Winfrey, U.S. Presidents Martin Van Buren & Jimmy Carter
INTJ
Dan Akroyd, Susan B. Anthony, Arthur Ashe, Caesar, Jane Austen, William F. Buckley, Raymond Burr, Chevy Chase, Phil Donahue, Michael Dukakis, Bryant Gumbel, Hannibal, Charles Everett Koop, C. S. Lewis, Joan Lunden, Edwin Moses, Martina Navratilova, Pernell Roberts, Maria Shriver, U.S. Presidents: Chester A. Arthur, Thomas Jefferson, John F. Kennedy, James Polk, Woodrow Wilson
ISTP
Humphrey Bogart, Charles Bronson, Johnny Cash, Cher, Tom Cruise, James Dean, Clint Eastwood, Peter Fonda, Ernest Hemingway, Kris Kristofferson, Willie Nelson, Burt Reynolds, Keith Richards, Frank Sinatra, Sylvester Stallone, Patrick Swayze, Frank Zappa, U.S. Presidents Millard Fillmore & Zachary Taylor, Fictional: "The Fonz," Hedda Gabler, Popeye the Sailor, Willy, the killer whale
ISFP
Paula Abdul, Andre Agassi, Fred Astaire, Yogi Berra, Doris Day, Michael Jackson, Ervin "Magic" Johnson, Greg Louganis, Marie Antoinette, Marilyn Monroe, Olivia Newton‑John, Dan Quayle, Debbie Reynolds, Doc Severinson, Brooke Shields, Donald Sutherland, Elizabeth Taylor, U.S. President Ulysses S. Grant
INFP
Tom Brokaw, Joyce Brothers, Dick Clark, Neil Diamond, Anne Frank, Judy Garland, Audrey Hepburn, Homer, Helen Keller, Henry Wadsworth Longfellow, St. Luke, Mary - mother of Jesus, Jacqueline Kennedy Onassis, Donna Reed, Carl Rogers, Amy Tan, James Taylor, Virgil, Fictional: Calvin, E.T., Hamlet - Prince of Denmark
INTP
John Barkai, Macauley Culkin, Charles Darwin, Rene Descartes, Albert Einstein, Thor Heyerdahl, Ron Howard, Midori Ito, C. G. Jung, Henry Mancini, Bob Newhart, Sir Isaac Newton, Leonard Nimoy, Blaise Pascal, Rob Reiner, Socrates, Meryl Streep, U.S. Presidents: John Quincy Adams, Gerald Ford, James Madison, John Tyler, Fictional: Linus ("Peanuts")
ESTP
Lucille Ball, Jimmy Conners, Michael J. Fox, W. C. Fields, Joe Garagiola, Marvin Haglar, King Henry VIII, Reggie Jackson, Evel Knievel, John Madden, Madonna, Eddie Murphy, Jack Nicholson, Colin Powell, Don Rickles, Joan Rivers, Roy Rogers, Wesley Snipes, Mr. T, John Wayne, Mae West, Chuck Yeager, U.S. Presidents: James Buchanan, Andrew Jackson, Franklin Pierce, Theodore "Teddy" Roosevelt, Fictional: Scarlett O'Hara
ESFP
Gracie Allen, Peggy Cass, Carol Channing, Dale Evans, Eva Gabor, Kathy Lee Griffith, Arsenio Hall, Woody Harrelson, Goldie Hawn, Bob Hope, Mary Queen of Scots, Jim Nabors, Dolly Parton, Kyle Petty, Mary Lou Retton, Will Rogers, Meg Ryan, Willard Scott, Red Skelton, Suzanne Somers, Jim Varney (Ernest_ movies), U.S. President Warren G. Harding
ENFP
Julie Andrews, "Dr." Seuss, Burl Ives, Captain Kangaroo, Hayley Mills, Elizabeth Montgomery, Geraldo Rivera, Andy Rooney, Mickey Rooney, Dave Thomas (owner of Wendy's hamburger), Robin Williams, Cathy (comic strip character)
ENTP
Alexander the Great, John Candy, Lewis Carrol, Sir Winston Churchill, Bill Cosby, Thomas Edison, Alfred Hitchcock, Groucho Marx, Wolfgang Amadeus Mozart, British Admiral Nelson, Sir Walter Raleigh, George Bernard Shaw, John Sununu, Lily Tomlin, Oscar Wilde, Gene Wilder, Weird Al Yankovic, U.S. Presidents: John Adams, James A. Garfield, Rutherford B. Hayes, Finctional: Bugs Bunny, Wile E. Coyote, Garfield The Cat
ESTJ
Bonnie Blair, Lloyd Bridges, Bette Davis, Rev. Billy Graham, Carl Lewis, John D. Rockefeller, U.S. Senator Robert A. Taft, U.S. Presidents: Grover Cleveland, Lyndon B. Johnson, James Monroe, Harry S. Truman, Fictional: Lucy (Peanuts cartoon character)
ESFJ
Desi Arnaz, Jack Benny, Carol Burnett, LeVar Burton, John Connally, Nancy Kerrigan, Don Knotts, Griffith Show", Reba McIntire, Vincent Price, Marilyn Quayle, Julia Roberts, Steve Spurrier, Jimmie Stewart, Sally Struthers, U.S. Presidents: William J. Clinton, William Henry 'Tippecanoe' Harrison, William McKinley, Ronald M. Reagan, Fictional: Hoss Cartwright, Donald Duck, Ricky Ricardo ("I Love Lucy")
ENFJ
Mario Cuomo, David - King of Israel, Elizabeth Dole, Dick Van Dyke, James Garner, Andy Griffith, Abraham Maslow, Francois Mitterand, Wayne Newton, Ross Perot, President Abraham Lincoln
ENTJ
Alan Alda, Lamar Alexander, Les Aspen, Candace Bergen, Anita Bryant, Julius Caesar, Cicero, Sean Connery (James Bond ‑ 007), Howard Cosell, Queen Elizabeth I, Harrison Ford, Whoopi Goldberg, Al Gore, Garrison Keillor, Jay Leno, Dave Letterman, Rush Limbaugh, Tony Orlando, Antonin Scalia, Norman Schwarzkopf, Margaret Thatcher, Sigourney Weaver, U.S. Presidents Richard M. Nixon & Franklin D. Roosevelt, Daffy Duck, Yogi Bear

61. Myers-Briggs Preferences
Extraversion – Introversion
Sensing – Intuitive
Thinking – Feeling
Judging - Perceiving
E – I
S – N
T – F
J - P

63. Preferences

64. ISTJ ISFJ INFJ INTJ ISTP ISFP INFP INTP ESTP ESFP ENFP ENTP ESTJ ESFJ
“Take Your Time and Do It Right”
ISFJ
“On My Honor, to Do My Duty…”
INFJ
“Catalyst for Positive Change”
INTJ
“Competence + Independence = Perfection”
ISTP
“Doing the Best I Can With What I’ve Got”
ISFP
“It’s the Thought That Counts”
INFP
“Still Waters Run Deep”
INTP
“Ingenious Problem Solvers”
ESTP
“Let’s Get Busy!”
ESFP
“Don’t Worry, Be Happy”
ENFP
“Anything’s Possible”
ENTP
“Life’s Entrepreneurs”
ESTJ
“Taking Care of Business”
ESFJ
“What Can I Do For You?”
ENFJ
“The Public Relations Specialist”
ENTJ
“Everything’s Fine – I’m in Charge”

66. Distribution of MBTI Types -Total
ISTJ
11-14%
ISFJ
9-14%
INFJ
1-3%
INTJ
2-4%
ISTP
4-6%
ISFP
5-9%
INFP
4-5%
INTP
3-5%
ESTP
ESFP
4-9%
ENFP
6-8%
ENTP
2-5%
ESTJ
8-12%
ESFJ
9-13%
ENFJ
ENTJ
Source: Center of Applications of Psychological Type

67. MBTI Types - Females ISTJ 7-10% ISFJ 15-20% INFJ 2-4% INTJ 1-3% ISTP
2-3%
ISFP
6-10%
INFP
4-7%
INTP
ESTP
ESFP
ENFP
8-10%
ENTP
ESTJ
6-8%
ESFJ
12-17%
ENFJ
3-6%
ENTJ
1-4%
Source: Center of Applications of Psychological Type

68. MBTI Types - Males ISTJ 14-19% ISFJ 6-8% INFJ 1-2% INTJ 2-6% ISTP 6-9%
ISFP
4-8%
INFP
3-5%
INTP
4-7%
ESTP
5-6%
ESFP
3-7%
ENFP
5-7%
ENTP
ESTJ
10-12%
ESFJ
5-8%
ENFJ
1-3%
ENTJ
3-6%
Source: Center of Applications of Psychological Type

69. Percentages of Types E I S N T F J P 45-53 47-55 66-74 26-34 40-50
Total
45-53
47-55
66-74
26-34
40-50
50-60
54-60
40-46
Females
45-55
70-75
25-30
24-35
65-76
55-60
40-45
Males
45-50
50-55
65-72
28-35
55-67
33-45
52-58
42-48

70. Least frequent
law student/
lawyer types
Most frequent
law student/
lawyer types

71. When you are really frustrated by another person’s
Points of View
Viewing through type
When you are really frustrated by another person’s
behavior or comments,
You probably are not seeing things from their point of view.

72. People with certain preferences [combinations of letters]
BARKAI'S THESIS:
People with certain preferences
[combinations of letters]
are more likely to have
certain psychological needs or interests in negotiations

73. consider, decide, and act in rather predictable patterns.
They may
consider, decide, and act in rather predictable patterns.
If you
understand the patterns,
you are better able to
reduce and resolve conflicts.

75. Extraversion or
Introversion
E -I

76. Description Extraverts Outer directed Energy & excitement
Love "people" action
Introverts
Inner directed
Quiet
People drain them

77. Communication Style Extraverts Fast & talkative Think out loud
Ready, fire, aim
Introverts
Slow & quiet
Internally thoughtful
Ready, ready, ready

78. Working with them Extraverts Small talk is ok Ask open-ended questions
Impasse?
Change energy
Introverts
Draw them out
Give them time to think
Send it in writing

79. Tips for you Extraverts Slow down & listen Warn them about you
Get them to brainstorm
Introverts
Be clear & forceful
Once is not enough
Smile

80. Judgment or
Perception
J-P

81. Description Judgers Like control & structure Want to get it decided
Aggressive at decisions
Perceivers
Want more information
Keep options open
Dislike schedules

82. Communication Style Judgers Discuss aggressively Quick to decide
Blame someone else
Perceivers
Informal style
Love to brainstorm
Discuss contingencies

83. Working with them Judgers They need structure Perceivers
Get details before closure
They sound more definite than they are
Perceivers
Don't constrain them
Last minute changes
Help them select options

84. Tips for you Judgers Have all the facts? Avoid fast conclusions
Allow others some time
Perceivers
Reduce the options
Assert your preferences
Just pick one

85. Sensing or
Intuition
S-N

86. Description Sensors The 5 senses Practical reality Status quo
Intuitivies
Possibilities
See the Big Picture
Theoretical overview

87. Communication Style Sensors Hear things literally Step-by-step
They don't brainstorm
Intuitives
Jump around a lot
Hear things figuratively
Consider facts as limits

88. Working with them Sensors Stay in "here-and-now" A concern for history
Factual & detailed
Intuitives
Brainstorm novel ideas
Metaphors & analogies
Assist getting to action

89. Tips for you Sensors More than just the facts Peel the onion
Same fact cuts both ways
Intuitives
Stick to the issues
Settle easy things first
Don't overlook details

90. Thinking or
Feeling
T-F

91. Description Thinkers Objective Logical Focus on the task Feelers
Subjective values
Harmony
Sociable & friendly

92. Communication Style Thinkers Brief & concise Impersonal terms
Pros & Cons
Feelers
Talk story
Friendly
Perhaps time consuming

93. Working with them Thinkers Be logical & organized
Cost-benefit analysis
Avoid emotions
Feelers
Be interested in people
Start with agreements
Don't criticize them

94. Tips for you Thinkers Allow some emotions Find out what they feel
Any "people" issues?
Feelers
Don't take it personally
Be brief & don't repeat
Forget harmony this time

95. Zig-Zag Pattern for Presenting Information
Sensing Intuition
Thinking Feeling

96. Mottos Extraverts “Let’s talk this over.” Introverts
“I need to think about this.”
Sensors
“Just the facts, please.”
Intuitives
“I can see it all now.”
Thinkers
“Is this logical?”
Feelers
“Will anyone be hurt?”
Judgers
“Just do something.”
Perceivers
“Let’s wait and see.”

97. Mediation Conciliation
Professor John Barkai William S. Richardson School of Law University of Hawaii

98. Mediation is
assisted negotiation 98

99. NO POWER The mediator has no power to decide the dispute but sometimes
“proposes” a solution
(if evaluative)

100. Levels of Mediation Community Family disputes
Commercial/Construction/Legal
Other types
International Politics

101. 101

102. Why should you use mediation?
Compared to litigation
Faster
Cheaper
Private - confidential
Less formal
Parties remain in control of their dispute
Traditional reasons

103. Why should you use mediation? The truth is …
Virtually all psychology principles work against negotiators to make them over-value their case
Many negotiators need a mediator’s help overcoming strategic barriers to successful negotiations

104. The truth is (?) Misevaluated your case
See it is being better than it actually is
Selective perception – ignores the bad
Over confident
Negotiating poorly
Strategic bargaining has caused problems
Reactive devaluation

105. Go beyond what the law will allow
Mediation allows you to go beyond what the law will allow,
and that is one of the major reasons you should consider mediation

106. Litigation / Mediation
Past / Future
106

107. 傍目八目 Okame Hachimoku (Japanese proverb) The onlookers see more than the players.
107

108. 108

109. The mediator’s most powerful 2-letter word is
109

110. Styles of Mediation
FACILITATIVE
EVALUATIVE
110

111. Facilitative mediators
ASK
Evaluative mediators
TELL
111

112. PRACTICE MEDIATOR LINES  
FORUM PHASE - DEALING WITH THE PAST AND THE PRESENT
Can we agree that as a ground rule, we will ...
Remember, you both agreed not interrupt..
Tell me more about that.
When did this happen?
So what you are saying is ...
Wait. Let me be sure I understand correctly. You're saying ...
So, as far as you are concerned ...
What else is important?
Could you say more about that?
How do you feel about what happened?
What do you mean by that?
Is there anything else you want to add?
Let's move to the issue of ...
Can you tell me more about ...?
What additional information do you have on that?
Of all that you have talked about, what is most important to you now?
112

113. NEGOTIATION PHASE - DEALING WITH THE FUTURE
What could X do to help you solve this problem?"
What can you do to help solve this problem?
Do you have any other ideas for solving this problem?
What do you think will happen if you can't negotiate a solution?
How do you want things to be between the two of you?
Is what you are talking about now helpful in reaching a solution?
Put yourself in Mr./Ms. X's shoes. How do you think they feel right now.
What do you have in mind on that topic?
If X were to do A, what would you be willing to do?
What I hear you saying is that you might be willing to ...
You both seem to agree that ...
Do you agree with the solution that we are talking about?
What you are talking about sounds like it might work. What will happen if ...
MUCH LATER - MEDIATOR SUGGESTIONS:
How would you feel about ...
What would happen if you tried ...
113

114. MEDIATORS FIND SOLUTIONS by HELPING PARTIES NEGOTIATE
Uncover Interests
Prioritize Interests
Brainstorm Options
"What could they do...?"
"What could you do...?"
114

115. Review the Relationship Engage in contingent Bargaining
Establish criteria
Create Doubts
Review the Relationship
Engage in contingent Bargaining
"If they were to , what could you do?"
"For you to , what would you expect them to do?"
Narrow the differences
Save Face
Emphasize Progress
115

116. Engage in Reality Testing: BATNA
Stress the Consequences of No Agreement
Find External Standards & Sources
Cheerleader for settlement
And, as a last resort:
Mediator suggests MULTIPLE options
116

117. Why Women Must Ask Margaret Neale
and everyone else
Why Women Must Ask Margaret Neale

118. If you don’t negotiate your job terms (especially $$), you will always be behind (the difference compounds over time)
Ineffective preparation – big mistake
Lower expectations will hurt you
Avoid the female penalty for negotiating (which is real) – take on a communal focus for the organization to sell yourself

119. Broaden your definition of negotiation
Assess: how can I influence the outcome
Plan
Ask
Package the proposal
Don’t be afraid of asking

120. Top Recommendations
Package your requests so you can say, “Here are the resources I need to be effective.”
Use your networks to get insights
Develop options;
know (and improve) your BATNA

121. 101 Ways to get a bigger piece of the Pie
It is not (always, or even often) about the money

122. BEFORE THE NEGOTIATION
Prepare. Prepare. Prepare.
Know your BATNA
Focus on interests, not positions
Know your interests
Prioritize your interests
Improve your BATNA before the negotiation starts
Improve your BATNA during the negotiation

123. BEFORE THE NEGOTIATION
Set a high goal for yourself
Estimate their BATNA
Estimate their interests
Estimate the ZOPA (zone of possible agreement)
Talk with others who have negotiated with them

124. AT THE TABLE 1 Develop a relationship before talking money
Recognize their negotiating style
Don't narrow your negotiations to one issue
Don't quickly accept the first offer
even if you think it's fair.
If you agree in haste, you may repent at leisure
Ask lots and lots of questions
Active listen
Reframe negative statements

125. AT THE TABLE 2
Pace them
Make the first offer to anchor (if you have enough info)
Start with an extreme, but not outrageous offer
If they make the first offer, ignore any extreme offer and anchor your offer in a favorable position
Justify all offers and concessions

126. AT THE TABLE 3 Take a seat to your advantage (not detriment)
Wait for TOP to finish before responding
Hint at, or disclose your BATNA, to improve their offer
Mislead them about your BATNA
Determine their interests
Ask. Estimate based upon available info. Assume and ask Qs to confirm
Be willing to make the first concession
Don't make multiple, unilateral concessions
Concede slowly
Concede in small steps
Make you concessions 1/2 of what you would naturally do

127. AT THE TABLE 4
"That sounds a little high (low)." - to induce concessions
Don't be in a hurry to make the deal
Ask for an "extra." Nibble
Don't take it personally
Frame issues as "gains" for them, not losses
Use silence
Consider if they have a hidden agenda
Keep the emotional temperature low

128. AT THE TABLE 5 Have limited authority Think about the long term
Is it worth serious negotiating on this one?
Don't appear desperate for the deal
Invent options for mutual gain
Seek objective criteria
Act confident and informed
"Split the difference" only when it is to your advantage
Flinch

129. AT THE TABLE 6 Offer contingent concessions
Don't act like you "won" or you won't next time
Don't underestimate your offer
Be willing to walk away (at least for a while)
Be willing to suggest mediation
Make a larger concession than you thought necessary
Most psychological principles suggest your offer is too extreme
Over optimistic, Selective perception,
Do not reject their offer based because of reactive devaluation

130. FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR Flinch. Take time out.
TIPS
FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR
Flinch.
Take time out.
Remember your BATNA!
Get another opinion.
Ask "how" they will negotiate.
If they don't know what "win-win" means,
they won't be negotiating that way.
Avoid multiple concessions
if your concessions are
not matched by their concessions.
Recognize "dirty tricks"
and comment on them immediately.

131. TO IMPROVE YOUR NEGOTIATIONS:
Think in terms of interests
Classify the type of negotiation:
Deal or Dispute
Distributional or Integrative
Expand the pie
Use a planning chart
Investigate the opposing negotiator
Consider both strategy and tactics
Set high goals for yourself
Practice before you negotiate
Determine your BATNA

132. TO IMPROVE YOUR NEGOTIATIONS:
Ask lots of questions
Separate the people from the problem
Generate alternatives by brainstorming
Frame your proposals as a gain to them
Flinch when you hear a high demand
Protect your facts when necessary
Be willing to make concessions, but only if they do too

133. FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR Flinch. Take time out.
TIPS
FOR NEGOTIATING WITH A COMPETITIVE NEGOTIATOR
Flinch.
Take time out.
Remember your BATNA!
Get another opinion.
Ask "how" they will negotiate.
If they don't know what "win-win" means,
they won't be negotiating that way.
Avoid multiple concessions
if your concessions are
not matched by their concessions.
Recognize "dirty tricks"
and comment on them immediately.

134. Difficult Conversations
Tongue Fu
Difficult Conversations
Apology
Why Can’t You Shut Up?
Prof. John Barkai William S. Richardson School of Law University of Hawaii

135. Kung Fu Chinese martial art emphasizing internal development to
defuse, disarm and deflect
physical attack.

136. Tongue Fu Martial art of Verbal self-protection & Communication
to prevent conflicts and resentment when you have good intentions.

137. Tongue Fu

138. It’s not what you say, but how you say it

139. Words to Lose Fighting phrases Words to Use Friendly phrases
Avoid “trigger words,” creating resentment -> Rapport

140. Butt out

141. I am sure you are all really smart, but…
141

142. No “Buts” about it “But” Out! Lose Use
“And…”

143. BUT AND AND instead of BUT
You did a good job, but you get defensive when someone gives you constructive criticism.
AND
You did a good job, and, when you can learn to accept some help, you’ll do even better and be an even more valuable team member.

144. But someone near you 2-3x each
That’s a pretty good idea you had, but ….
I know you have thought about it for a long time, but…
You probably think you are working very hard, but…

145. And Having said that However
Throw more but’s out!
Don’t dismiss ideas mid sentence, acknowledge their contributions and make them feel like you’re both working towards the same goals.
And
Having said that
However
145

146. Never say “No” or “Can’t” Words to Lose Words to Use
“You can’t…”
“You can’t because…”
“Sure, as soon as…”
“Yes, right after…”
“No” - shuts the verbal door in the face
“No” is a dead-end word
Shifts the responsibility for getting what they want to you – not them

147. Don’t say “no” to their request
2-3x each
Dad, can I borrow the car tonight?
Can I have a raise?

148. You Should Have …

149. Don’t “SHOULD” on them Lose Use
“You should have …”
“You need to …”
Can’t change past
Shames
Lose face
Resentment
“Next time…”
“From now on…”
“In the future…”
Coaches
Respectful
Shapes
Coach instead of criticize

150. Should on someone near you
You should have …
…come to me earlier with this
…gotten my approval before acting alone
Then rephrase it with Tongue Fu

151. Avoid EXTREMES be SPECIFIC
“SPECIFICS”
This is the second time this month you’ve missed. Is there a problem? We need your area to be represented.
Your work was late last week too. Please let me know in advance if you’re going to miss the estimates.
“EXTREMES”: NEVER, ALWAYS, NO ONE
You never attend my meetings.
You always tell me you’ll be done on time, and you never are.

152. Stop Defending Yourself

153. You obviously don’t care much about …
customers me
anyone other than yourself
the little guys

154. You’re clearly biased You’re not giving me a fair chance
154

155. Don’t know what to say when you are accused?
Don’t really “say” anything.
Draw out the real issue.

156. Ask Questions
Answer accusations
with questions

157. “What do you mean?” “Why do you say that?” “What makes you think that?
Careful about your tone of voice when you say these things

158. 4 Magic Phrases To Get Out of Any Jam
That’s interesting; tell me more.
That’s interesting; why would you ask that?
That’s interesting; why would you say that?
That’s interesting: why would you do that?
Do you ever find yourself at a loss for words? Do people say things to you, or ask you things that leave you speechless?
1million views
Dan O’Connor

159. Accuse someone near you then let them “draw you out” by asking questions
159

160. Explanations Appear As EXCUSES
If what they’re saying is basically true, say “YOU’RE RIGHT!” (magic words)
and take the AAA Train
A= Agree: “You are right.”
A= Apologize: “I’m sorry.”
A= Act: “I will …”
- sometimes you don’t even have to act

161. Your Mistake? Lose Use “No way! I didn’t…”
“You’re right. I should have…”
Just admit it, don’t try to excuse it

162. Requests, not orders Lose Use
“If you would…?”
“Could you please…?”
“Would you like…?”
Use
Requests
Recommendations
“You’ll have to…”
“You need to …”
Sounds like orders

163. When you don’t know the answer Lose Use
“I don’t know what you can do.
“That’s a good question. Let me ask …
… if you can hold on for a moment, we can…

164. Make Eye Contact Kids know that your eyes show
where your attention is focused
So do adults.

165. Turn Ranting and Raving into Reporting by
Are they Out of Control?
Turn Ranting and Raving into Reporting by

166. Say PLEASE instead of “YOU’LL HAVE TO…”
LOSE
You have to submit your reports by Friday.
You have to complete a change request if you want that to be added to the project.
USE
In order to avoid being on the non-compliance list, please submit your reports by Friday.
In order that we may provide you with a valid estimate of the impact, please, submit a change request.

167. DEVISE a way, instead of DEPRIVE
CAN instead of CAN’T
DEVISE a way, instead of DEPRIVE
CAN
Here are the options we have to satisfy your request. This is what we recommend…
I can. Please schedule a time for us to meet and figure out how to fit it in to my schedule.
CAN’T
We CAN’T!
I can’t I have too much work to do.

168. Don’t Take Nasty People Home with You
- story of the employee and boss
- 9 am incident
- fuming all day
- told spouse that night
- who is making you mad?
- who did you give a ride home to?
- who did you set a place for at the table?

170. Calm down I understand …
“I can’t help you until you calm down!”
“I understand how upset you are, and I can help.”
Calm down? – Don’t tell me to “calm down.”
170

171. Calm down I understand …
“I can’t help you until you calm down!”
“I understand how upset you are, and I can help.”
“Please calm down and I’ll be able to help you.”
Calm down? – Don’t tell me to “calm down.”
171

172. Calm down I understand …
“I can’t help you until you calm down!”
“I understand how upset you are, and I can help.”
“Please calm down and I’ll be able to help you.”
“I understand why you would feel that way; please give me a chance to help.
Calm down? – Don’t tell me to “calm down.”
172

173. Graciously Exit No-win Disputes
What to say
Graciously Exit No-win Disputes
Let’s agree to disagree on this one.
You know what, we are both right.
Hey, we need to remember that we are on the same side.
Just because we don’t see eye to eye doesn’t mean we have to be enemies.
This is a no-win. Next subject.
Have some “stock” phrases ready

174. Tongue Glue

175. Fun Fu Find a humorous response to someone pressing you hot buttons.
Steal their thunder.
Tall man’s T-shirt:
Front side: No I’m not a basketball player.
Back side: “Are you a jockey?”

176. This is important with kids. Adults hold their anger longer.

177. It’s 5 p.m. now Approached on the street
Answer a different Q. e.g. give them the wrong time.

178. You can try to teach a pig to sing,
but it wastes your time,
and annoys the pig
95% of people respond to TF. The others are bullies. You need to do the “Yow!”. Don’t pull at Phibie from “Friends.”
“Have you told them how you feel?” Yes, but not out loud.

179. Tongue Fu
Hear a Sam Horn's Tongue Fu presentation
179

180. Difficult Conversations

181. The key idea: Shift to a Learning Conversation

182. instead of trying to persuade - understand their point of view - explain your point of view - share and understand feelings, - work together

183. See & acknowledge your own contribution

184. (you might not talk about 2 & 3)
Three Components
‘What Happened’ Conversation
Feelings Conversation
Identity Conversation
(you might not talk about 2 & 3)

185. Intention invention - we “know” the other’s intention (bad)
Truth assumption
– “I’m right. You’re wrong.”
Intention invention - we “know” the other’s intention (bad)
[and ours is good]
Blame game –establishing ‘blame’ or ‘fault’ creates defensiveness, anger and frustration.

186. Shift From truth perceptions Blame contribution Intentions impact
What’s my story? What’s their story?
Blame contribution
What have we each contributed to this situation? How can we fix things going forward?
Intentions impact
What assumptions am I making about their intentions? What is the impact on me?
What happened:

187. The Feelings Conversation
Have your feelings, or they will have you.
Feelings are what make relationships enjoyable and satisfying
Feelings are what make difficult conversations difficult
Ignoring (refusing to acknowledge and deal with) feelings – your own and the other person’s – is the most common mistake made in dealing with difficult conversations.
ILLUS: Aubrey and Nestle’s Quick – ‘Nothing’
ILLUS: Father talking to his daughter about the cost of her wedding.
On the surface, there are budgets and dollars and menus
But the most powerful part of the conversation is the one made up of feelings
GROUP DISCUSSION?
The feelings that surround difficult conversations – make a list.
People hate talking about feelings – but there’s no way around it. Refusing to learn about feelings is the cul-du-sac of relationships

188. The Identity Conversation
Difficult conversations are not just difficult because we have to face the other person, but because we have to face ourselves.
The Identity Conversation
(Difficult conversations can threaten our identity)
Am I competent?
Am I a good person?
Am I worthy of love?
ILLUS: Leaving a job for a better job.
Yet we don’t like the idea of talking to our boss and telling him we’re leaving. – Because of the way we want to see ourselves.
ILLUS: Having to fire someone
We don’t want to see ourselves as a person who hurts someone else
ILLUS: Talking to a pushy salesperson
We don’t want to see ourselves as a weak person who can be shoved around.
Am I Competent
ILLUS: Asking for a raise
Am I a good person
ILLUS: Any conversation in which another person will be hurt
Am I worthy of love
ILLUS: Difficult conversations where you will tell your spouse something that bothers you
(We don’t want to hear…well you’re not so great yourself!)

189. Starting a Difficult Conversation
The ‘Third Story’ is not your story and it’s not their story. It’s the point of view of a third person. To discover the third story, think like a mediator.
Where to begin
Start with ‘The Third Story’
The Third Story
Their Story
Your Story
It’s like a mediator’s opening statement

190. How to start? Start from the 3rd story – like a mediator’s opening Put their point of view first
We argue about the truth of what happened
)There are different truths (both internally and externally))We interpret what we see differently )Our conclusions always reflect self-interest )move from certainty to curiosity
)embrace both stories - adopt the ‘and stance’
Don’t assume you know another person’s intention
)Intention is usually complex
)Separate impact from intent
)I am aware of the other’s impact on me and my intention
)They are aware of my impact on them and their intention

191. You seem to think x, and I’m thinking Y. Can we talk about this
You seem to think x, and I’m thinking Y. Can we talk about this? I have something I’d like to discuss with you that I think will help us work together more effectively. I’d like to talk about ___ with you, but first I’d like to get your point of view. I need your help with what just happened. Do you have a few minutes to talk?
We argue about the truth of what happened
)There are different truths (both internally and externally))We interpret what we see differently )Our conclusions always reflect self-interest )move from certainty to curiosity
)embrace both stories - adopt the ‘and stance’
Don’t assume you know another person’s intention
)Intention is usually complex
)Separate impact from intent
)I am aware of the other’s impact on me and my intention
)They are aware of my impact on them and their intention

192. I think we have different perceptions about ___
I think we have different perceptions about ___. I’d like to hear your thinking on this. I’d like to talk about ___. I think we may have different ideas about how to ____. I’d like to see if we might reach a better understanding about ___. I really want to hear your feelings about this and share my perspective as well.
We argue about the truth of what happened
)There are different truths (both internally and externally))We interpret what we see differently )Our conclusions always reflect self-interest )move from certainty to curiosity
)embrace both stories - adopt the ‘and stance’
Don’t assume you know another person’s intention
)Intention is usually complex
)Separate impact from intent
)I am aware of the other’s impact on me and my intention
)They are aware of my impact on them and their intention

194. Bad Apologies People fail to acknowledge - (“for whatever I did”);
Use the passive voice - (“mistakes were made”);
Make the apology conditional (an apology “if mistakes have
been made”);
Question whether the victim was damaged or minimize the offense (an
apology “to the degree you were hurt” or “only a few soldiers were involved);
Use a simple “sorry” instead of acknowledging responsibility;
Apologize to the wrong party or person;
Apologize for the wrong offense.

195. An Effective Apology 1. A valid acknowledgment of the offense
2. An effective explanation
3. Expressions of remorse, shame, and humility
4. A reparation of some kind
by Aaron Lazare

196. Apology Research Partial apology – cut settlement rate in 1/2
Full apology - much more likely to settle
(73 percent of the cases),
Partial apology – cut settlement rate in 1/2
(35 percent)
No apology is better than a bad one –
(52 percent settled without an apology)
Jennifer K. Robbennolt (U. Illinois) - reactions of 145 professionals to situations involving some form of apology, mainly a legal settlement after an accident.
Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 MICH. L. REV. 460 ( ).

198. A book about Conflicts in our closest relationships Family Friends Co-workers Spouses Significant Others

199. The Baby Self v. The Mature, adult Self

200. The “Shut Up” approach Then say no more. Do not defend yourself:
You: “I’m sorry I’m late.”
They: “You’re always late.”
Do not defend yourself:
At most, you repeat: “I’m sorry.”
Then say no more.

201. Guidelines
Think: Stop talking if there is nothing to be gained (and lots to be lost).
Don't repeat yourself. Make your point once (and sit down / shut up).
Don't take their bait. Don’t get sidetracked. Ignore it. "You're just like your father" or "You always say that!"
Or, if you are giving advice, give your advice just once and move on. Don't require them to recognize it as the most brilliant suggestion ever.

202. So, simply Shut Up! Disengage. Stop. Leave it alone

203. The vast majority of adult arguments between close friends or couples do not end with instant solutions (if they end at all)

204. Looking for additional reading or listening?
John Barkai University of Hawaii Law School