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

Negotiation & ADR are Professional and Personal Skills

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

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

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

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

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

What is the appropriate amount of Conflict?

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

All polishing is achieved by friction - Mary Parker Follett

Who has the Power?

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

Open Ended Questions

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?

Expand the pie

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

Interests Goals Needs Dreams Desires Doo shoe e mu

Same bed, different dreams

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

U.S. Declaration of Independence

Security Sovereignty

GETTING TO YES Separate People from Problem Interests not Positions Invent Options Objective Criteria BATNA http://mediationadvocacy.com/Getting%20to%20Yes.pdf

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”

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

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

    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.

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.

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

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 …………

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

The key to hard negotiation situations is soft communication skills

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

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

Tactics Video

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

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.)

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.

Changing Minds Role reversal Apologies The Work of Mediators and Empirical Studies of Persuasion James Stark & Douglas Frenkel http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1769167 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

3 Slices of Differences Culture MBTI Gender

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.

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

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

Many patterns make the quilt of the world

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

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

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

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

It’s not about the nail https://www.youtube.com/watch?v=-4EDhdAHrOg

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

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.

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

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

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

Preferences

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”

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 - 2006

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 - 2006

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 - 2006

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

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

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.

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

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.

Extraversion or Introversion E -I

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

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

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

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

Judgment or Perception J-P

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

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

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

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

Sensing or Intuition S-N

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

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

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

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

Thinking or Feeling T-F

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

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

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

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

Zig-Zag Pattern for Presenting Information Sensing Intuition Thinking Feeling

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.”

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

Mediation is assisted negotiation 98

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

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

101

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

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

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

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

Litigation / Mediation Past / Future 106

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

108

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

Styles of Mediation FACILITATIVE EVALUATIVE 110

Facilitative mediators ASK Evaluative mediators TELL 111

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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.

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

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

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

Tongue Fu

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

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

Butt out

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

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

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.

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…

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

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

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

You Should Have …

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

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

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.

Stop Defending Yourself

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

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

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

Ask Questions Answer accusations with questions

“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

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? https://www.youtube.com/watch?v=g5RknemM8Hw 1million views Dan O’Connor

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

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

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

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

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…

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

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

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.

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.

Don’t Take Nasty People Home with You http://www.youtube.com/watch?v=t5AHvfZEyvY - 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?

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

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

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

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

Tongue Glue

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?”

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

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

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.

Tongue Fu Hear a Sam Horn's Tongue Fu presentation http://www2.hawaii.edu/~barkai/HO/TongueFu.mp3 179

Difficult Conversations

The key idea: Shift to a Learning Conversation

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

See & acknowledge your own contribution

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

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.

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:

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

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!)

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

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

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

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

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.

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

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 (2003-2004).

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

The Baby Self v. The Mature, adult Self

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.

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.

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

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

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