ALTERNATIVE DISPUTE

RESOLUTION
(LLB 2101/SLS 3130)

NEGOTIATION

Facilitator:
Elizabeth Mokeira, Ph.D
Advocate of the High Court of Kenya
Law Teacher: Strathmore University
[email protected]
OUTLINE
Meaning of Negotiation
Factors affecting negotiation as a mode
of ADR
Types of/approaches to negotiation
Preparing to negotiate
Negotiation process
Negotiation games/techniques
Ethics and negotiation

 Case study
 Mr. Majani wanted to buy a piece of land in Syokimau area, Machakos County.
After several leads, he settled for a piece of land owned by Ms. Musyoka. Mr.
Majani and Ms. Musyoka met and agreed the selling price (Kes. 5M.)
 Mr. Majani, through his advocates, conducted a search which showed that Ms.
Musyoka was indeed the true owner of the land in question. Armed with this
information, Mr Majani then entered into a sale agreement with Ms.
Musyoka for the sale of that piece of land. Mr. Majani paid Kshs. 1M being
the 20% of the selling price, which Ms. Majani acknowledged receipt.
 According to the sale agreement, Ms. Musyoka was required to prepare and
have ready completion documents including the transfer of title documents.
This was to be done within three months from the date of the sale
agreement.
 After three months from the date of the sale agreement, Mr Majani through his
lawyer contacted Ms. Musyoka for the completion. Mr. Majani was ready to
pay the remaining Kshs. 4M and have the land title transferred to him.
However, Ms. Musyoka said that she was not ready to proceed since she had
already entered into an agreement to sell the land to another person who
offered a higher price.
 Mr Majani is not amused. He would like to have this dispute resolved but not
through court-based litigation. He has approached you and requested you,
on his behalf, to reach out to Ms. Majani and try to see if there can be any
settlement on this issue.
 Meaning of negotiation
 Negotiation has been defined as any form of direct or indirect
communication whereby parties who have opposing interests
discuss the form of any joint action which they might take to
manage and ultimately resolve the dispute between them
 Goldberg, Sander and Rogers define negotiation as
‘communication for the purpose of persuasion. This means in
negotiation, parties to a dispute discuss possible outcomes
directly with each other.
 In these discussions, the parties exchange proposals and
demands, make arguments, and continue the discussion until
a solution is reached, or an impasse is declared.
 It involves the parties themselves, or with their advisors trying
to settle their dispute without involving a neutral third party.
 Negotiation is considered the most basic dispute resolution
mechanism with parties having autonomy over the process of
reaching a mutually acceptable decision without assistant
from third parties.
 Muigua argues that negotiation is one of the mechanisms that bring
about conflict resolution and are non-coercive in that the parties
have autonomy about the forum, the process, the third parties
involved and the outcome.
 Non-coercive methods allow parties to work through their conflict,
address its underlying causes, and reach a resolution to that conflict
 Within negotiations disputants meet to discuss mutual or opposing
interests despite the parties having equal or unequal powers to
reach a win-win solution.
 Negotiation is the first step to mediation
 Rarely would a prudent lawyer take a case to trial without trying to
negotiate a settlement.
 The aim of negotiation is to harmonize the interests of the parties
concerned amicably.
 This mechanism involves the parties themselves exploring options for
resolution of the dispute without involving a third party.
 In this process, there is a lot of back and forth communication between
the parties in which offers for settlement are made by either party.
 If agreed upon by the other party, the dispute is deemed to have been
resolved amicably.
 Characteristics of negotiation
 Voluntary: No party is forced to participate in a negotiation.
Parties may participate directly in the negotiations or they
may choose to be represented by someone else, such as a
family member, friend, a lawyer or other professional.
 Bilateral/Multilateral: Negotiations can involve two, three or
dozens of parties. They can range from two individuals
seeking to agree on the sale of a house to negotiations
involving diplomats from dozens of States
 Non-adjudicative: Negotiation involves only the parties. The
outcome of a negotiation is reached by the parties together
without recourse to a third-party neutral.
 Informal: There are no prescribed rules in negotiation. The
parties are free to adopt whatever rules they choose, if any.
Generally they will agree on issues such as the subject matter,
timing and location of negotiations.
 Confidential: The parties have the option of negotiating
publicly or privately.
 Flexible: The scope of a negotiation depends on the choice of
the parties.
 Factors affecting negotiation
 Preparation:
 Adequate preparation is vital for achieving favourable outcomes.
Researching the subject matter, understanding the opposing
party's position, and setting clear objectives are crucial steps in
effective preparation for Negotiation. The more prepared you are,
the more confident and better equipped you will be during the
Negotiation process
 Power dynamics:
 Power dynamics play a significant role in negotiations.
 Understanding who holds power and how it can be leveraged is
essential. Power can be derived from various sources, such as
expertise, authority, information, or resources.
 Recognising the power dynamics at play allows negotiators to adapt
their strategies accordingly, ensuring a fair and balanced
Negotiation process.
 Trust/credibility:
 Parties having trust in each other certainly has a great impact on
the overall negotiation process. If parties are negotiating for the
first time with each other, it is highly recommended that they
spend some time to develop rapport and build trust. This requires
 Communication and active listening :
 Effective communication is at the heart of successful negotiations.
Expressing ideas clearly, using persuasive language, and maintaining a
respectful tone are essential skills. Moreover, active listening is equally
important. By attentively listening to the other party's concerns, needs,
and perspectives, negotiators can build rapport, gain valuable insights,
and find common ground. Strong communication and active listening
foster trust and facilitate a collaborative Negotiation environment.
 Emotional intelligence:
 Emotional intelligence plays a vital role in Negotiations. Being aware of
one's emotions and managing them effectively, as well as
understanding the emotions of others, enables negotiators to navigate
through challenging situations. Emotional intelligence helps in building
empathy, defusing tensions, and finding mutually beneficial solutions.
By considering and addressing the emotional aspects of Negotiation,
better outcomes can be achieved.
 Clarity:
 People develop skepticism in the absence of clarity and this harms the
negotiation process. Negotiation often proceeds on the basis of facts,
figures, past data, future trends and outlooks, studies, empirical data,
and calculations. Information, to repeat a cliché, is power. Adequate
and reliable information about the various issues involved is essential
for ensuring the success of a negotiation exercise.
 Flexibility and adaptability:
 Negotiations rarely follow a linear path, and unexpected
challenges may arise. Being flexible and adaptable to
changing circumstances is crucial. It involves being open to
alternative solutions, adjusting strategies, and finding creative
compromises. Flexibility allows negotiators to overcome
obstacles and maintain progress towards reaching a mutually
satisfactory agreement.
 Cultural and social factors:
 Negotiations often involve parties from diverse cultural and
social backgrounds. Understanding and respecting these
differences is essential for effective Negotiation. Cultural
norms, values, communication styles, and decision-making
processes can significantly impact Negotiation dynamics.
Being aware of and adapting to these cultural and social
factors fosters mutual understanding and increases the
likelihood of successful negotiations.
 Time
 Personalities

 Styles/Approaches to negotiation
 In the courtroom, rules of evidence and procedure, and
the oversight of the judge/magistrate provide a structure
and clarity of the process.
 In negotiation, there is no set structure save for what is
agreed by the parties, and no rules save for those that
come from the context of possible litigation.
 This leaves substantial scope for the use of strategy and
tactics, and these have a significant impact o the
outcome of the negotiation process.
 This then makes it critical for one to understand the
strategies and tactics which may be used , and what they
may achieve.


 Position-based approach
 Positional bargaining is a negotiation strategy that involves
holding on to a fixed position, of what you want and arguing
for it and it alone, regardless of any underlying interests.
 In Positional bargaining, the two sides start out with extreme
positions.
 They then negotiate and concede ground until a compromise is
reached, or not.
 Neither party cares about any other issues going on with either
part outside of the deal. Nobody takes the time to truly invest
in the negotiation, they simply hammer away
 Positional bargaining frames negotiation as an adversarial,
zero-sum exercise focused on claiming rather than creating
value.
 Typically in positional bargaining, one party will stake out a
high (or low) opening position (demand or offer) and the
other a correspondingly low (or high) one.
 Then a series of (usually reciprocal) concessions are made until
an agreement is reached somewhere in the middle of
 In position-based negotiations, substance is important.
 Both parties focus in on the actual item being negotiated
about.
 In position-based negotiations, the other party is seen as
an enemy to overcome.
 Each party tends to be self-serving in an attempt to see
victory over the other. They push for their own
predetermined solutions and, if the concede, they
concede grudgingly.
 What are the advantages and disadvantages of positional
approach to negotiation? Class discussion
 The problem in position-based negotiations is that it often
breeds resentment.
 If you win in a negotiation and the other party feels as if
they lost, they’ll walk away resentful and they’re
probably going to attempt to get back what they lost one
way or the other.
 Positional negotiating can be a speedy and effective negotiation
tactic, which is one of its key benefits. Negotiations can move
more quickly when both parties are adamant about a certain
point, since less time is spent debating potential solutions.
 When both sides are aware of their goals and the worth of the
objects being negotiated, positional bargaining can be helpful
as well. It may be simpler to come to a mutually beneficial
arrangement if both sides are clear on what they want and how
much it is worth.
 Disadvantages of positional bargaining
 The fact that positional negotiating frequently results in a lose-
lose situation is one of its key drawbacks. Finding a middle
ground and coming to a mutually beneficial agreement can be
challenging when both parties are negotiating aggressively.
 One partner can feel exploited as a result, which could cause
resentment and strain in the relationship.
 When both sides are unwilling to compromise or make
compromises, positional negotiating may also prove to be a
fruitless tactic. In these circumstances, discussions may stall
out and result in no resolution.
 Interest-based approach/Principled negotiation
 It involves exploring the deeper interests underlying
parties’ stated positions to identify potential tradeoffs
and win-win opportunities across issues and interests.
 A position is what you decide you want in a particular
situation.
 It’s a predetermined and a specific solution to a problem
you want to solve or a need that must be met.
 It may be the amount of money that you want. It may be
the way that you want work to be done.
 It may be about the type of equipment that you need and
so forth. Behind every position is an interest.
 An interest represents the need or want that motivated you
to select the item you want of arrive at your solution.
Interests are often rooted in human needs
 In interest-based negotiations, substance is still important.
 However, interest-based negotiation also emphasizes the
importance of relationships, especially if both parties
work interdependently, they depend on each other to
achieve a common goal or objective.
 In interest-based negotiations, the intent is to reach a
mutually acceptable outcome, something that is mutually
beneficial to both parties.
 The interest of both parties are being met. If a problem
does emerge, the parties are hard on the problem and
not on the person.
 And if they do yield, people yield to objective criteria,
something that both parties can agree to as being
legitimate and fair.
 The outcome of an interest-based negotiation is one where
credibility is built between both parties as they develop a
relationship of trust.

 The primary principle of interest-based negotiations is to emerge or
get a good understanding of your and the other party’s interests
and to develop or invent creative options that will meet those
interests.
 This approach increases the chance of establishing a good
relationship with the other party and achieving outcomes that are
mutually beneficial.
 Persuasive principles or criteria of fairness and legitimacy are used
to establish standards both parties can agree to.
 Having a good alternative to walk away from is equally important.
 Finally, effective communication is absolutely critical.
 Not every negotiation is successful.
 However, if you know that you have livable alternatives in the event
the negotiation breaks down, you will have some “breathing room”
to enhance your confidence and competence in attempting to
influence the other party.
 Remember, that in interest-based negotiations power is used to
influence and work with people, not used against people.
 Our intention is to bring people their senses rather than to their
 In Getting to Yes, Fisher, Ury, and Patton describe the four main elements of
principled negotiation. By learning these elements, you can significantly
improve your negotiation skills.
 1. Separate the people from the problem. Strong emotions can become
wrapped up with the substantive issues in a negotiation and complicate it
even further.
 In principled negotiation, negotiators work to deal with emotions and
personality issues separately from the issues at stake.
 2. Focus on interests, not positions. Negotiators often waste time
arguing over who should get their way or, alternatively, trying to find a
compromise point in between the two firm positions they have staked.
 In principled negotiation, negotiators look beyond such hard-and-fast
positions to try to identify underlying interests—their basic needs, wants,
and motivations.
 Imagine that two siblings disagree about where to host their parents’
anniversary party. One wants to have it at a restaurant, while the other
wants to have it in her home. They only make headway when they identify
their deeper interests:
 Probably, the former doesn’t have a lot of time to devote to preparation,
while the other is concerned about the cost.
 Armed with this understanding of each other’s interests, they do some
research and decide to host the party at a relatively inexpensive
 3. Invent options for mutual gain. Negotiators often settle for the first
agreement they reach, relieved to have hit upon an outcome that both
sides can live with.
 In principled negotiation, negotiators devote significant time to
brainstorming a wide range of possible options before choosing the best
one.
 In negotiation, options refer to any available choices parties might consider
to satisfy their interests, including conditions, contingencies, and trades.
 For example, imagine a job negotiation where the candidate values a higher
salary, while the hiring organization is concerned about being fully
staffed. If so, the job seeker might be willing to make a concession on
vacation days in return for the promise of a higher salary.
 4. Insist on using objective criteria. It’s common in negotiation for
parties to argue back and forth about whose “facts” are correct.
 This type of argument is likely to end in either impasse or an inefficient
compromise.
 A better way? In principled negotiation, negotiators rely on objective
criteria—a fair, independent standard—to settle their differences.
 For example, they might agree to abide by standards such as market value,
expert opinion, industry protocol, or law. Importantly, parties should
agree in advance about which objective criteria to consult and agree to
 Advantages and disadvantages of interest-based
negotiation
 The fact that interest-based negotiation results in a win-win
solution is one of its key benefits. An agreement that benefits
both parties can be reached when the parties collaborate to
define their interests and come up with original solutions.
 When there is a long-term cooperation or relationship between
the parties, interest-based negotiating can also be helpful. It
might help to develop trust and deepen the relationship
between the parties if they cooperate to find a solution.
 Disadvantages of Interest-Based Bargaining
 Interest-based bargaining’s key drawback is that it can be
time-consuming and labor-intensive. More time may be
needed than with positional negotiation when both sides are
attempting to define their interests and come up with a novel
solution.
 When both sides are unwilling to make concessions or when
there is a considerable power disparity between the parties,
 Planning to negotiate
 Before the negotiation, it is helpful to plan.
 Know whether you are in a win-win or win-lose situation. Be
sure of your goals, positions, and underlying interests.
 That is, before entering any negotiation, it’s essential to
clearly understand what you aim to achieve. This includes
identifying your must-haves, nice-to-haves, and deal-
breakers.
 Try to figure out the best resolution you can expect, what is
a fair and reasonable deal and what is a minimally
acceptable deal.
 Avoid setting too low or unrealistically high targets that
could hinder the negotiation process. It’s important to set
achievable and realistic goals to ensure a successful
outcome
 What information do you have and what do you need? What
are your competitive advantages and disadvantages?
 What is the other party's advantages and disadvantages?
Conduct thorough research to understand the interests,
strengths, and weaknesses of the other party. This
knowledge can significantly impact the negotiation tactics
you choose.
 Give some thought to your strategy. Develop a comprehensive
strategy that includes your tactics and potential fallback
positions. This preparation helps in handling the negotiation
process more effectively.
 It is very important to be clear on what is important to you. Be
clear about your real goals and real issues and try to figure
out the other person's real goals and issues.
 Too many negotiations fail because people are so worried
about being taken advantage of that they forget their needs.
 People who lose track of their own goals will break off
negotiations even if they have achieved their needs because
they become more concerned with whether the other side
"won."
 Engage in regular practice sessions to build confidence
and refine your negotiation skills. This preparation is
crucial for handling real negotiation scenarios effectively.
 Be prepared to adapt your strategy based on the
negotiation flow and the other party’s responses.
Flexibility can lead to better outcomes, especially when
unexpected challenges arise.
 Effective preparation helps you gather the necessary
information prior to negotiation and can improve the
quality of your negotiations.
 Besides discussing plans for the actual negotiation with
other parties during this phase, it's beneficial to conduct
internal preparation prior to the negotiations.
 Performing research, meeting with stakeholders or
decision-makers within an organization and developing
contingency plans can provide you with more options
when you meet with the other parties to hold a
 The negotiator’s dilemma: creating or claiming value
 Value can be defined as anything you would like to get out of a
negotiation
 Creating and claiming value are two of the most fundamental
aspects of negotiation strategy that exist in tension with one
another.
 In any negotiation, the parties must decide whether to be
competitive, cooperative, or some of both.
 In the value-creating view negotiators work primarily to
increase the available resources, to find joint gains or "win-win"
solutions, wherein all the parties will benefit.
 That is, value creation allows parties to integrate various sources
of value through tradeoffs and other creative deal-making
strategies
 In other words, value creation, or integrative negotiation, involves
looking beyond the most obvious issue, such as price, for new
sources of value that can be brought to the table to expand the
pie.
 Value-creating opportunities can be uncovered by searching for a
common interest, rather than letting the differences that exist
 Other promising value-creation strategies include asking
lots of questions to learn about what matters to your
counterpart and sharing information about your own
interests and priorities.
 The goal of this cooperative problem-solving in a
negotiation is to uncover joint gains for both parties
 Negotiators must act cooperatively, and successful
negotiators are open and creative.
 They share information, communicate clearly, maintain a
cooperative attitude and focus on developing common
interests.
 In the value-claiming view, negotiators work primarily to
claim the largest share of the disputed goods.
 Value claiming, also known as distributive negotiation or
single-issue negotiation, involves trying to get as much
of the pre-existing value on the negotiating table for
yourself—and away from the other party
 To be successful negotiators must engage in hard
bargaining; they must "start high, concede slowly,
exaggerate the value of concessions, minimize the
benefits of the other's concessions, conceal information,
argue forcefully on behalf of principles that imply
favorable settlements, make commitments to accept only
highly favorable agreements, and be willing to outwait
the other fellow.
 To succeed at the bargaining table, professional
negotiators become effective at both distributive
negotiation and integrative negotiation.
 Ideally, you should be able to create more value by
negotiating trades across issues and then claim the lion’s
share of that value for yourself through distributive
negotiation strategies.


 Professor Leigh L. Thompson’s book The Mind and Heart of
the Negotiator offers four key steps you can take to
improve your negotiating skills and thoroughly prepare to
claim value.
 1. Assess and improve your BATNA. In negotiation,
your best alternative to a negotiated agreement, is often
your strongest source of power.
 A BATNA is not to be confused with a “bottom line.”
 A BATNA is an alternative you can independently turn to if
you have to walk away from negotiations altogether.
 A BATNA is standard to measure agreements which protect
you from accepting terms that are unfavorable, or to reject
terms that are not in your best interests to accept.
 When you have a strong alternative, you will be ready to walk
away from any deal that is inferior to your BATNA.
 Wise negotiators not only assess their BATNA before
negotiating but spend considerable time working to try to
improve it..
 2. Calculate—but do not disclose—your reservation
point. In negotiation, your reservation point is typically a
figure or offer that represents what you need to get at the
table that will prevent you from pursuing your BATNA.
 Because your reservation point, also known as your walkaway
point or bottom line, is the least amount you are willing to
accept, it is generally wise not to share it or your BATNA with
your counterpart across the table, even if you trust and like
the other party, lest they take advantage of this information.
 3. Research the other party’s BATNA and reservation
point. It is important not only to determine your own BATNA
and reservation point but to estimate your counterpart’s
BATNA and reservation point.
 This knowledge will help you determine how far you can push
the other side.
 You can make these estimates by thinking about and
researching the other party’s alternatives and resources, such
as how much they might have to spend and what other
negotiating opportunities might arise for them.
 4.Evaluate the ZOPA. When you have a sense of each party’s
reservation point, you will be able to evaluate the zone of possible
agreement (ZOPA).
 The ZOPA encompasses the range of all possible deals that both parties
would find acceptable.
 For example, if you, as a job candidate, would accept a minimum of
$75,000 from a firm, and your research suggests they might pay you
as much as $85,000, then the ZOPA is $75,000-85,000. Your ZOPA will
also help you set an ambitious but realistic target, such as $85,000.
 To succeed at the bargaining table, professional negotiators become
effective at both distributive negotiation and integrative negotiation.
 Ideally, you should be able to create more value by negotiating trades
across issues and then claim the lion’s share of that value for yourself
through distributive negotiation strategies.
 Taking a collaborative approach to negotiation doesn’t negate the
importance of claiming a fair share of the value you’ve jointly created.
 What skill sets are required to execute a deal with value-creating and
claiming?
 What are the pitfalls that may prevent a negotiator from reaching an
integrative deal and how can you best avoid them?

 Negotiation Skills
 Negotiators rely upon interpersonal communication, trust, rapport,
and creativity to achieve an agreement with value created and
claimed.
 The necessary skill set for interpersonal communications includes
asking open-ended questions, engaging in active listening, and
reflecting on clarifying meaning, primarily to facilitate gathering
and exchanging information.
 Broad, open-ended questions tend to elicit the most new
information since they induce opponents to talk.
 Try to maintain good eye contact. Take as few notes as possible to
permit you to focus upon opponent's verbal and nonverbal signals.
 Observe carefully and probe the opponent to ascertain his/her
perception of situation, because it may be more favorable to own
side than anticipated.
 Restate, in your own words, important information the opponent has
apparently disclosed, to verify/clarify information actually
divulged.
 By the conclusion, negotiators should be able to articulate, at a
minimum, what matters most, what they are afraid of, what their
ideal outcome would be, and what alternatives exist, from the
 To facilitate the open exchange of information, negotiators must
establish trust and rapport.
 Negotiators earn trust by demonstrating alignment between
actions and words and treating others with dignity, while
negotiators establish rapport through professionalism, courtesy,
positivity, and friendliness.
 Finally, creativity is critical to generate and develop novel
solutions. Skills such as brainstorming, analogies, envisioning
a better future, and using a third-party can aid the process.
 In brainstorming the negotiators’ intent is to come up with as
many ideas as possible no matter how ridiculous they may
sound.
 When brainstorming has been exhausted, then we can evaluate
and take a closer look at each option.
 During the evaluation, each option is tested against the interest-
based problem statement. Does the option under discussion
meet the interest of both parties? If it doesn’t, then it should be
removed from the list. The objective here is to decide on the
best options, those that clearly meet the objectives or interests
 Critical point near the end of successful negotiation is
when parties begin to realize that an agreement within
their respective settlement ranges is likely and they
become psychologically committed to that result.
 As the parties enter the Closing Stage, each is concerned
about the possibility of conceding too much
 Use of threats/warnings at this stage is generally counter-
productive, since threats/ warnings are offensive rather
than cooperative and are more likely to disrupt the
process.
 Use of promise technique is particularly effective, since it
permits parties to move together-- e.g., agreeing to "split
difference" between positions currently on negotiating
table.
 Important to remember that Closing Stage is the most
competitive part of negotiation process.
 Once you recognize that your opponent has become
psychologically committed to settlement, evidenced by
such closing behavior as more rapid and more generous
concessions, do not move too quickly.
 Be patient and encourage your opponent to close more of
the remaining gap.
 Indicate that you have minimal bargaining room left to
induce opponent to believe he/she must close most of
remaining gap.
 Emphasize your prior concessions in effort to generate guilt
that may induce your opponent to be more generous now.
 Be supportive of opponent's position changes-- Praise that
party's reasonableness and indicate that an agreement is
certain if he/she can provide you with the few additional
items you need to satisfy your client's minimal goals.
 If opponent prematurely offers to split the difference
between the parties, you may offer to split remaining
difference inducing opponent to close 75 percent of gap.
 In summary you need a wide set of skills including;
 Communication
 Active listening
 Emotional intelligence
 Persuasion
 Planning
 Expectation management
 Patience
 Flexibility/adaptability
 Problem solving
 Decision making
 Rapport-building
 Integrity


 NEGOTIATING GAMES/TECHNIQUES
 (a)Numerically Superior Bargaining Team.
 Single people who negotiate against two or three
opponents are usually at a distinct disadvantage.
 Their opponents can more easily monitor their verbal and
nonverbal signals and they can compare ideas during
separate caucus sessions.
 Individuals who must negotiate against several opponents
should have colleagues join them to counteract the
numerical superiority possessed by the other side.
 People who have 15 or 20 persons on their side of table are
at disadvantage against smaller teams, and they should
conduct intra-organizational interaction during
Preparation Stage to generate common goals and
common strategy.


 (b) Asymmetrical Time Pressure.
 If one side is under more time pressure than the other, a
patient participant may take advantage of this
imbalance.
 Negotiators must recognize that opponents also have
deadlines that affect their behavior.
 Advocates can often hide their time constraints.
 Transaction negotiators may preempt the time element by
announcing the deadline that must be met by both sides
if a deal is to be consummated.
 (c) Extreme Initial Offer/Demand.
 Creates high aspirations in self and may induce careless
opponent to reconsider own evaluation.
 May cause opponent to conclude that matter cannot be
reasonably resolved, or may place offeror in position
from which he/she may end up retreating in uncontrolled
fashion.
 Counter-measures:
 Important to directly inform the offeror of how unreasonable
his/her opening position is, to disabuse him/her of any notion
that position is even remotely realistic.
 You may refuse to state your own opening position until some
meaningful offer is presented to you, but this forces opponents
to bid against themselves.
 You may respond with equally outrageous position of your own,
hoping to talk opponent into joint resort to realistic positions.
 May come out with own realistic position, but must realize that
this will require opponent to make concessions on 10:1 basis.
 (d) Probing Questions.
 Advocates confronted by truly extreme positions may generate a
more flexible atmosphere through the use of probing questions
designed to induce opponents to explain the positions being
taken.
 Use of neutral, nonjudgmental inquiries is often more effective
than direct challenge to positions being taken by intransigent
persons.
 Ask opponents to value most finite items first, writing down
figures that are remotely realistic.
 If unreasonable figure is cited, calmly indicate lack of objective
basis for the position and ask how opponent determined that
number.
 When done, state your position usually three times opponent’s
offer or one-third of his/her demand.
 (e) Best Offer First Bargaining.
 Presenting best offer at outset, explaining that you do not wish
to waste time engaging in usual "auction" bargaining since
this is all you are willing to offer.
 Impossible to know true value of transaction from own side’s
perspective because you must meet with opponent to
determine how much he/she wants an agreement.
 May only be employed effectively by person with bargaining
power. This is because a party with such power can afford to
be generous with process and let the other party think he/she
has influenced the outcome, since he/she may be willing to
 Entails substantial risk that opponent will react negatively to
such paternalistic offer no matter how reasonable it is, due
to feeling that he/she was denied opportunity to participate
in process.
 Opponent may even accept less through auction process
than you were willing to offer.
 Recipients of these offers should assess them on merits and
not merely reject them due to patronizing manner of
presentation.
 (f)Take-it-or-leave-it negotiation strategy. Offers should
rarely be nonnegotiable. To defuse this hard-bargaining
tactic, try ignoring it and focus on the content of the offer
instead, then make a counter-offer that meets both parties’
needs.
 (g) Inviting unreciprocated offers. When you make an
offer, you may find that your counterpart asks you to make
a concession before making a counteroffer herself. Don’t
bid against yourself by reducing your demands; instead,
 (h)Trying to make you flinch. Sometimes you may find that your
opponent keeps making greater and greater demands, waiting for you
to reach your breaking point and concede. Name the hard-bargaining
tactic and clarify that you will only engage in a reciprocal exchange
of offers.
 (i) Personal insults and feather ruffling. Personal attacks can feed
on your insecurities and make you vulnerable. Take a break if you feel
yourself getting flustered, and let the other party know that you won’t
tolerate insults and other cheap ploys.
 (j)Bluffing, puffing, and lying. Exaggerating and misrepresenting
facts can throw you off guard. Be skeptical about claims that seem
too good to be true and investigate them closely.
 (k)Threats and warnings. Want to know how to deal with threats?
The first step is recognizing threats and oblique warnings as the
hard-bargaining tactics they are. Ignoring a threat and naming a
threat can be two effective strategies for defusing them.
 (l)Belittling your alternatives. The other party might try to make you
cave in by belittling your BATNA. Don’t let her shake your resolve.
 (m)Good cop, bad cop. When facing off with a two-negotiator team,
you may find that one person is reasonable and the other is tough.
Realize that they are working together and don’t be taken in by such
hard-bargaining tactics.
 ETHICS AND NEGOTIATION
 Most practicing lawyers are not litigators.
 They handle family and property matters, trusts and estates,
business transactions, tax controversies, and similar
situations.
 They almost never participate in judicial or arbitral
adjudications.
 Most of their interactions with other lawyers involve
negotiations.
 When direct negotiations do not generate mutual accords, they
may request mediation assistance.
 Even litigators rarely participate in formal adjudications, due to
the high financial and emotional costs and the unpredictable
nature of those proceedings.
 They thus resolve 90 to 95 percent of their cases through direct
inter-party discussions or mediator-assisted settlement talks.
 However, some advocates may try to advance client interests
through tactics that are designed to make their opponents
 As we have seen, some may be rude or inconsiderate, or may
employ overly aggressive bargaining tactics.
 A few may resort to abrasive or even hostile behavior they hope
will disconcert unsuspecting adversaries
 At what point would such conduct transcend the bounds of
appropriate behavior?
 To answer this question, we must talk about ethics and negotiation
 The dictionary definition of ethics is: "a system of moral principles
or values; the rules or standards governing the conduct of the
members of a profession; accepted principles of right or wrong."
 Ethics establish the means of doing what is right, fair and honest.
 Why are ethics important in a negotiation
 Whether we are aware of it or not, we make a series of “micro-
decisions” during our time at the bargaining table.
 Such decisions often revolve around ethics in negotiation,
including choosing whether to disclose, conceal, or misrepresent
information that would weight outcomes in your own favor.


 Ultimately, whether negotiators choose to engage in ethically
questionable behavior can depend on a host of factors, such
as power and opportunity.
 As a result, we need to be particularly vigilant to the possibility that
we will behave deceptively, even if we have no intention of doing so.
 You can't be 95 percent or 99.9 percent ethical. You are either ethical
or you are not.
 Principles to guide you to act/behave ethically
 Reciprocity: Would I want others to treat me or someone close to me
this way?
 Publicity: Would I be comfortable if my actions were fully and fairly
described in the newspaper?
 Trusted friend: Would I be comfortable telling my best friend,
spouse, or children what I am doing?
 Universality: Would I advise anyone else in my situation to act this
way?
 Legacy: Does this action reflect how I want to be known and
remembered? Doing the right thing sometimes means that we must
accept a known cost. But in the long run, doing the wrong thing
may be even more costly
 Ethical negotiators don't think only about what they can "get" out
of a negotiation but also about what they can "give" to their
counterpart.
 In this way, they take the long-term view. They know that a
counterpart who walks away from a negotiation feeling
successful will be willing to come back and negotiate again in
the future.
 The following 10 tips will ensure that you build all your
negotiations on a foundation of ethics
 1. Know what is not negotiable. Knowing what is negotiable
and what is not will make you a much more effective negotiator.
 2. Be honest. In a negotiation, whenever you are ethical and
honest even though it costs you something, you gain points. If a
counterpart makes an invoice error that is to your advantage
and you inform him of it, that costs you something--but it also
earns you respect.
 3. Keep your promises. In your eagerness to put a deal together,
you may sometimes make promises and concessions you hadn't
planned to make. You demonstrate your ethics when you fulfill
 4. Have multiple options. Going into a negotiation with multiple
options will help both you and your counterpart achieve your
goals. If someone proposes an option you feel is unethical, you
will be ready with another, ethical option for accomplishing the
same goal. Sometimes you may encounter negotiators who are
unilateral thinkers who have only one option.
 With them, it's their way or the highway. If their way is unethical
in your opinion, you have only one option--to walk away from
the deal.
 5. Be willing to say "no." Some negotiators are quite
comfortable looking a counterpart in the eye and saying "no"
when they feel something is not right. Others worry that saying
"no" seems confrontational, even when a proposal does not
seem ethical--then later they regret agreeing to the proposal.
Being willing to say "no" to something that is not right is a great
strength.
 6 Follow the Platinum Rule: treat people the way we would like
to be treated. Caring about your counterparts enough to treat
them the way they want to be treated helps build long-term
relationships based on ethics and trust