Presented by Prof. Alan Kirtley May 14, 2008 Law Librarians of Puget Sound Workshop 2008 “Lowering the Barriers to Agreement” Presented by Prof. Alan Kirtley May 14, 2008

Agenda Roleplay of a simple negotiation Prado Scoot Discussion of negotiation strategies Group Choice Review other barriers to optimal agreements Or Q and A period

Prado Scoot Roleplay Spend 10 minutes preparing to negotiate Find your negotiating partner and bargain for 15 minutes

Negotiation Strategies Prado Scoot: Opportunity for Different Negotiation Strategies Competitive Cooperative

Competitive Strategy Competitive Strategy: “zero sum” “adversarial” “distributive” “positional” Every dollar gained is an equivalent dollar loss to the other negotiator Did you bargain using the adversarial model? Why not? Co-worker status

Competitive Strategy Competitive Strategy helps a negotiator receive a large slice of the pie Parties following a competitive strategy in Prado Scoot would only bargain over price

Cooperative Strategy Cooperative Strategy: “interest based bargaining” “integrative bargaining” “principled negotiation” “Getting to Yes principles” Negotiators can find positive trade-offs in their differing goals, preferences and values

Cooperative Strategy Cooperative Strategy helps the negotiators make a bigger pie to slice Parties following a cooperative strategy in Prado Scoot would explore trade-offs

Unified Concept of Negotiation Recognizes that nearly every negotiation has both competitive and cooperative aspects Recognizes that no matter how big the negotiators make the pie they will still have to slice it

The Negotiator’s Dilemma How to strike the right balancing between cooperative and competitive strategies in any give negotiation

The Negotiator’s Dilemma Cooperation generates positive trade-offs and better deals through openness Risk: You can be taken advantage of Competition results in a larger slice of the existing pie for you by holding your cards close to your vest Risk: You can miss valuable trade-offs

Navigating the Negotiator’s Dilemma Begin a negotiation by being open to cooperation Attempt to use the Getting to Yes principles: 1. Separate the People from the Problem 2. Focus on Interests and not Positions 3. Invent Options for Mutual Gain 4. Insist on Objective Criteria 5. Know your BATNA

Navigating the Negotiator’s Dilemma Remain cooperative only so long as there is a balanced exchange of: Information Preferences Goals Proposals

Navigating the Negotiator’s Dilemma The cooperative negotiator is indifferent to the gains of the other party so long as he/she continues to make gains

Barriers to Optimal Agreements Types of Barriers Social Psychological Strategic Cognitive Functional

Social Psychological Barriers Conflicting Negotiation Styles Five Thomas-Kilmann Categories Competing Accommodating Avoiding Collaborating Compromising

Navigating Negotiation Style Work toward making your default negotiation style collaborative Train yourself to adopt any one of the other styles to respond to: The negotiation context Your negotiating partner’s style

Social/Psychological Barriers Reactive Devaluation People react to proposals made by an adversary by automatically devaluing them. The identical proposal will be rated higher if delivered by an ally or neutral. Mediators add value by reducing reactive devaluation.

Strategic Barriers Conflicting Negotiation Strategies Compete vs. Avoid Compete vs. Compete Principal/Agent Issues Present when the principal’s and agent’s interests do not align

Cognitive Barriers Cognitive Barriers Human reasoning departs from rational judgment and decision making Anchoring Self-Serving Bias Risk aversion Loss aversion

Cognitive Barriers Choose one: A. Receiving $20 in cash or B. A 30% chance of receiving $100

Cognitive Barriers Risk aversion People will take a sure thing over a gamble even where the gamble may have a higher expected value

Cognitive Barriers Choose one: A 30% chance of paying $100 or

Cognitive Barriers Loss Aversion People will gamble at 30% odds of paying $100 rather than taking a certain loss of $20

Functional Barriers Failure of adequate preparation (fact gathering, analysis or strategic planning) Failure of effective communications Emotionalism Linkages to other disputes or preexisting commitments Different assessment of BATNA’s Different Information Different Assessment of same information Constituency Pressures