Alternative Dispute Resolution: Negotiation
We participate in negotiations every day. We negotiate disputes and we negotiate over responsibilities. A negotiation is a bargaining process between parties when both seek to reach an agreement that settles a matter of mutual concern or resolves a conflict.
Though conducting a negotiation has some objective principles that can guide its success, it is an art. Steve Gates, CEO of The Gap Partnership, an international workshop provider and organizer, wrote “There is no right, no wrong, no good, and no bad way to negotiate. Only that which is appropriate to your circumstances.”
This presentation will provide an overview of the steps to a negotiation, how a negotiator can determine his best and worst alternatives and the primary bargaining styles that can be used when negotiating.
Steps to a Successful Negotiation
The five steps to the negotiation process are:
1) Preparing and planning
2) Defining ground rules
3) Clarification and justification
4) Bargaining and problem solving
5) Closure and implementation
Preparing and Planning
The first step, preparing and planning, is where the parties determine their goals for the negotiation. Each party must first determine its BATNA, or “best alternative to a negotiated agreement,” colloquially often referred to as “best case scenario,” and its WATNA or “worst alternative to a negotiated agreement” (the worst-case scenario). These two represent the extreme possibilities and negotiation is about getting a settlement that’s as close as possible to one’s best case scenario.
The BATNA is your course of action should negotiations break down. The better your BATNA, the greater your negotiating power, as a good alternative decreases your danger from a failed negotiation. If one side has many attractive alternatives aside from reaching a deal, that side has greater power to reach a deal that will be most beneficial to him. The threat of walking away is more realistic.
Preparing and planning one’s BATNA also helps a party determine whether it is time to break off a negotiation and pursue an alternative.
To determine a BATNA in the preparation and planning stage, a party should:
1) List the available alternatives;
2) Evaluate these alternatives;
3) Choose a course of action that would have the highest expected value; and
4) Calculate the “reservation” value which is the “worst” deal that he would accept in a negotiated settlement
For example, assume a buyer and a car dealer begin negotiating over the sale of a car. The dealer offers to sell the buyer a new car for $10,000. The buyer, who took the time to determine her BATNA during the preparation and planning stage, knows that another nearby dealer is selling a similar but slightly inferior car for $9,000. The $9,000 is the buyer’s reservation value and purchasing the $9,000 car is her BATNA. If the first seller doesn’t drop his sales price from $10,000, the buyer can walk away to the other dealership and purchase the lower priced car. If negotiations stall with the dealer holding firm at, say, $9,600, the buyer can make an informed decision as to whether the $600 price difference is worth more than the advantages over the “backup” car. A buyer who had not done his research or could not find a fallback option that he’s satisfied with would be in a much weaker bargaining position.
While determining the BATNA in complex litigation is more difficult, the same principles apply. Before negotiating a settlement, each party must determine whether she’s willing to go to trial or whether she can even afford the time and expense to proceed to trial. This greatly influences the leverage that parties have in negotiations.
Just as important as determining a BATNA is discovering the “worst alternative to a negotiated agreement,” known as a WATNA. This looks at the worst-case scenario if negotiations break down. What would be the risks, costs, drawbacks, and ramifications if a deal isn’t reached?
Defining ground rules
The second step, “defining ground rules”, pertains to the procedural requirements for the negotiation. During this step, the parties will answer questions such as, “How long will the negotiation last?”, “Where will the negotiations take place?”, and “What will be the starting point for the negotiations?” It is often helpful to start by clearly establishing what each party concedes to clarify the areas of disagreement.
Clarification and justification
In the third step, “clarification and justification,” parties will clear up and settle any confusion about their positions. It’s an opportunity for educating and informing one another on the issues in dispute. Each side clarifies its demands to ensure the negotiation is properly focused.
Bargaining and problem solving
The fourth step is bargaining and problem solving. Bargaining and problem solving is the essence of the negotiation because it’s where the parties may compete or cooperate as they each seek to advance their interests.
It’s impossible to answer the question, “What is the ‘best’ negotiation style?” as there is no single approach. Different bargaining styles and tactics are useful depending on the circumstances.
Competitive Approach to Negotiations
The negotiator who engages a competitive bargaining style is solely concerned with achieving his own goals without considering the impact on the other side. The competitive negotiator seeks to force the opposing party to a settlement that is favorable to the negotiator, and his goal is to win as much as possible.
The competitive bargaining negotiator achieves his goal by attempting to convince his opponent that her case is not strong and that she should seek a solution as quickly as possible. Instead of approaching a negotiation like an exercise in joint problem solving so that all parties benefit, the competitive negotiator views negotiations as a zero-sum game; one party must win and another will have to lose.
The following aggressive tactics are often used by competitive negotiators:
· Use of assertive language;
· Less willingness to listen and wanting to speak;
· Attempt to dominate the negotiation;
· Distorting information;
· Concealment and selective disclosure of information about his client’s case.
For example, a sports agent negotiating a higher salary for his client using this approach would likely threaten the team that his client will sign with another team, or sit out a season, should his current team not agree to his salary demands.
Though such “hardball” tactics may maximize the results in a client’s interest, there are numerous disadvantages to this negotiation approach. Because a competitive negotiation is so confrontational, relationships can be hurt. A competitive negotiator’s tactics could lead to mistrust and anger. Additionally, studies on negotiation tactics have found that competitive negotiators are more likely to reach an impasse and deadlock during the negotiation because competitive tactics lead to inflexibility from both sides.
Cooperative Approach to Negotiations
Also known as the collaborative, or interest-based, approach, parties in a cooperative negotiation identify interests and then “partner” with the other party for options and solutions that will satisfy both sides’ interests. Cooperative negotiators will attempt to resolve conflicts so that everyone benefits, will focus on using problem solving methods to create value for both sides, and will grant concessions so that it becomes more likely that the other side will reciprocate.
It’s a “win/win” approach because it is about making sure both parties have their needs met and that mutual value is created. Cooperative negotiators employ collaborative methods when they seek to maintain long-term relationships and keep future negotiations in mind when conducting the present negotiation.
Characteristics of a cooperative approach to negotiation include:
o Willing to compromise;
o Adopting a friendly attitude towards the other party;
o Separating people from the problem;
o Using on objective criteria.
Collaborative negotiators emphasize creativity, empowerment, and control by the parties so that a resolution that advances both sides’ needs can be reached.
Closure and implementation
The fifth step, “closure and implementation”, is the formalization of an agreement that has been worked out and lays out how the parties will monitor one another’s actions to ensure that the negotiated agreement is carried out. Usually, this culminates in the signing of a formal settlement contract.
Because negotiation is so fact-specific, it is impossible to learn negotiation as a “black letter” course or study. Still, basic principles such as BATNA and competitive and collaborative negotiation should be considered in any negotiation process.
 Steve Gates, The Negotiation Book: Your Definitive Guide to Successful Negotiating, (2015).
 “BATNA Basics: Boost Your Power at the Bargaining Table”, Harvard Law School Program on Negotiation,
 Roger Fisher, Bruce Patton & William Ury, “Getting to Yes: Negotiating Agreement Without Giving In (3rd ed. 2011).
 Joseph Daly, “ALTERNATIVE DISPUTE RESOLUTION SYMPOSIUM: Guest Writers: International Commercial Negotiation and Arbitration”, 22 Hamline J. Pub. L. & Pol'y 217, (2001).
 Calum Coburn, “Negotiation Conflict Styles”, https://hms.harvard.edu/sites/default/files/assets/Sites/Ombuds/files/NegotiationConflictStyles.pdf.
 Donald Gifford, “A Context-Based Theory of Strategy Selection in Legal Negotiation”, 46 Ohio St. L.J. 41, (1985).
 Gerald Williams, “Legal Negotiation and Settlement”, (1983).
 Elliott McGinnies, “Social Behavior: A Functional Analysis”, (1970).
 Dafna Lavi, “Can the Leopard Change His Spots?! Reflection on the Collaborative Law Revolution and Collaborative Advocacy”, 13 Cardozo J. Conflict Resol. 61, (2011).