The Language and Psychology of Negotiations

Sayyed Mohsen Fatemi, Ph.D.

Harvard University

University of Toronto

smfatemi@wjh.harvard.edu

Time, Complexity, Creating and Claiming Values

Tactics for Success: Find Common Interests by Asking the Right Questions!

• Open-ended: “What were you hoping to settle today?”

• Leading: “Don’t you think this proposal meets one of your goals?”

• Clarifying: “Can you postpone collecting that fee until next year?”

• Gauging: “How important to you is the 24-hour service guarantee?”

• Seek agreement: “If we agree to your delivery terms do we have a deal?”

Common Nonverbal Behaviors

Tactics for Success:Practice Active Listening

• Active Listening = focus on what the other person is saying, understanding both the content and emotion

Practice Tips for Active Listening

#1 Maintain eye contact#2 Think only about what they are saying, don’t

formulate a response#3 Take notes and use them to reflect their

thoughts back#4 Pay attention to body language#5 Confirm that you heard and understand by

summarizing – ask reflective and probing questions

The Four Ears of Listening

Creating Persuasive Arguments• Three keys (according to Aristotle):

– Passion (Pathos): focus on emotions• Example: appeals to fairness, reciprocity

– Logic (Logos): focus on information• Example: mathematical estimates, pros and cons of an

action

– Character (Ethos): focus on the person• Example: Cite their reputation for honesty, fairness, authority

Using Persuasive Language• Tactics that make an argument persuasive:

1. Metaphor: A powerful way to convey meaning from one thing to another

2. Humor: Can create a positive atmosphere, or diffuse a tense moment

3. Using props: Visual people respond better to images and words than verbal communications. Props can focus the discussion easily

4. Storytelling: Conveys the interests behind the position5. Focus on other party’s perspective: Use either a central route –

encourage content, or peripheral route – using throwaways, friendly/flattering behavior

Tools for Persuasive Communication

• Successful negotiators create leverage through persuasive– Verbal communication: direct single dialogue to present a

position, followed by silence (use tone, pitch, and volume of your voice to convey meaning)

– Nonverbal communication: can add emphasis through body language, facial expressions, actions

• Kinesis: posture and physical movements (standing up, circling, walking out)

• Eye movement: maintain eye contact to convey security, truthfulness• Facial expression: can express anger, happiness, fear, concern, etc., but also

can be misread• Gestures: can be misread• Time and space: arriving on time, pleasant meeting space send cues

The Categorization Method

Step One: Identify all issuesStep Two: Classify each issue as

a. compatibleb. exchangec. distributive

Step Three: Agree on all compatible issuesStep Four: Trade or exchange issues of

approximately equal valueStep Five: Use distributive bargaining on all

unresolved issues

Tools for Persuasive Communication

• Successful negotiators create leverage through persuasive– Verbal communication: direct single dialogue to present a

position, followed by silence (use tone, pitch, and volume of your voice to convey meaning)

– Nonverbal communication: can add emphasis through body language, facial expressions, actions

• Kinesis: posture and physical movements (standing up, circling, walking out)

• Eye movement: maintain eye contact to convey security, truthfulness• Facial expression: can express anger, happiness, fear, concern, etc., but also

can be misread• Gestures: can be misread• Time and space: arriving on time, pleasant meeting space send cues

5-16

Persuasion Through Process• Process techniques to shape the other party’s

perception1. Identify the decision maker: take the discussion to

them2. Address needs of individual team members if the

interests of the groups are diffused3. Frame the issue in terms of achieving common good

for both parties, or meeting shared core values4. Share the diagnosis of the problem to create support

from both parties

5-17

Preparation• Decide your BATNA - always start with a clearly defined

BATNA and stick to it• List all key issues either party will want decided. Include

tangibles, intangibles, throwaways…the more the better!• Set priorities for the key issues by either: 1. Ranking; 2.

Weights (%); 3. Assign each issue to one of four priority levels—Essential, Important, Desirable, Throwaway

• Develop support arguments based on information, facts, logic

Reframing Offer• William Ury, Getting Past No, suggests that

negotiators never say no or reject an offer instead they reframe by using questions:– Ask why: “Why did you select that exact number?”– Ask why not: “Why not ask for an estimate from a

professional appraiser?”– Ask what if: “What if we agree to your price, but you

paid for delivery and warranty?”– Ask for advice: “How would you suggest I present this

offer to my boss when she has rejected that price?”

Reframing Personal Attacks• Personal attacks have become a common tactic –don’t

let emotions take over strategy• How?

– Prepare: Expect personal attacks, control your emotions

– Recognize: The other party needs to “blow off steam”– Reframe: Ignore the attack on you, reframe it on the

problem– Silence: Communicates your displeasure and can be a

powerful tool

Conflict DiagnosisConflict Diagnosis

Identify the underlying interests of the participants in the conflict.

Interests AnalysisInterests Analysis

• Causes of interpersonal conflict from the perspective of individual disputants

• Learn about underlying disputant motivation

• Learn about possible complementary goals

• Learn about possible conflict of interest between members of a team and between members of different teams

Advantages of Knowing Your Team’s InterestsAdvantages of Knowing Your Team’s Interests

• Gain a clearer understanding of your goals• Clarify: what interests could best be met in

resolving this conflict; what interests would be better met elsewhere

• Develop flexibility in bargaining position so good settlement is more attainable

• Avoid the problems of positional bargaining

What’s Wrong with Positional Bargaining?What’s Wrong with Positional Bargaining?

• Danger of becoming locked into position psychologically – regardless of whether a better option is available to you

• Danger of becoming blinded to important issues unrelated to your position

• Tendency to see the other disputant as the enemy, leading to unnecessary impasse, additional “spinoff” conflicts (“meta-conflicts”), etc.

Advantages of Understanding Other Disputant’s InterestsAdvantages of Understanding Other Disputant’s Interests

• Develop proposals beneficial to you, that other disputant will want to accept

• Take advantage of opportunities created by complementary interests

• Avoid later sabotage of settlement by disputant forced into undesirable settlement

• Avoid positional bargaining by appealing to other disputant’s interests

• Has useful even if you have to use coercion

Interest TreesInterest Trees

• Are a way to organize information about interests

• Help you understand underlying interests better

• Help you develop strategies to meet the most important needs

Positions

Aspirations

Underlying interests

Principles, values

Basic human needs

The “Conflict Onion”The “Conflict Onion”

I’d take anything over $10,000 if I can

avoid court!

ASPIRATIONS

Get paid as soon as possible

POSITION

I demand $20,000 or I sue!

PRINCIPLES and VALUES

People should be fairly paid

Wrongdoers should be punished

Esteem needsIdentity needs

Deficiency needs (food, shelter,

safety, clothing, etc.)

NEEDS

Security needs

Get fair settlement

Get back out-of-pocket losses

INTERESTS

Avoid time, expense of court

Need money now: can’t pay rent

Avoid court: risky!

Brother-in-law will think I’m spineless if I don’t get good result

Interest Tree ExampleInterest Tree Example

Tips for Interest TreesTips for Interest Trees

• There must always be needs – other elements are optional

• There may be multiple levels of underlying interests

• Each position, aspiration, interest, and principle/value rectangle must logically relate (directly or indirectly) to one or more need rectangles

• Don’t confuse interests with facts or contentions

Conflict DiagnosisConflict Diagnosis

Assess the negotiation styles of the participants in the conflict, consider how these styles impact the conflict, and develop plans for encouraging cooperation and collaboration among participants.

Power Tools and Magic KeysPower Tools and Magic Keys

• Using conflict diagnosis to understand interpersonal conflict – information for legal professionals

• Selecting a dispute resolution forum

Using Conflict DiagnosisUsing Conflict Diagnosis• Is it necessary?• Is it possible?• Techniques for incorporating conflict

diagnosis into legal advocacy

Invisible Veil ConsiderationsInvisible Veil Considerations• Reasons for needing conflict diagnosis are

often hidden• Conflict escalation obscures important

information and disempowers participants

“I Don’t Have Time”“I Don’t Have Time”• Conflict diagnosis can produce “better

dispute resolution”• Often, conflict diagnosis must be

curtailed due to time• Legal professionals may be prevented

by:– Billable hours requirement– Belief that legal ethics require positional

bargaining and/or adversary conduct

Changing PerspectivesChanging Perspectives

• Legal scholars commenting on limits of adversary processes:– Collaborative law movement

“Persuade” directions

Decision makersOther participants

DisputantDisputant

NegotiationNegotiation

Benefits of NegotiationBenefits of Negotiation

•Protects cooperation cycle•Is less expensive, quicker•Protects disputant relationships•Is less likely to breed new conflicts•Can address nonlegal issues and issues for which cause of action has not been stated; can settle ENTIRE conflict

COOPERATIONHigh Concern for Other

COMPETITIONHigh Concern for

Self

Negotiationstyle

Negotiationstyle

Negotiationstyle

Conflict behavior can be assertive, or cooperative, but not both

Cooperation and CompetitionCooperation and Competition

Concern for Self

Co

nce

rn f

or

Oth

er

high

high

lowlow

Avoiding

Obliging

Dominating

Compromising

Integrating

Conflict behavior can be assertive, cooperative, both, or neither

Dual-Concern Negotiation Theory

Dual-Concern Negotiation Theory

Cooperative styles (build relationships, prevent escalation):

• Obliging/Accommodating• Compromising• Integrating/Collaborating

Assertive styles (protect against exploitation):

• Dominating/Competing• Integrating/Collaborating

Perspectives on Negotiation StylesPerspectives on Negotiation Styles

Integrating/Collaborating:

• Best for preserving advantages of cooperation

• Best for preserving own interests

Perspectives on Negotiation StylesPerspectives on Negotiation Styles

Mutual styles (other disputant must cooperate to use successfully):

• Compromising• Integrating/Collaborating

Unilateral styles (can use regardless of other disputant’s style):

• Avoiding• Obliging/Accommodating• Dominating/Competing

Perspectives on Negotiation StylesPerspectives on Negotiation Styles

• Convince “other team” that collaborating will be better than the alternatives

• Educate other team about collaboration• Convince other team you

won’t take advantage of its decision to be cooperative

• Be ready to protect your team, or, at least, make sure that the potential benefits of your behavior will outweigh the risks

Getting “the Other Team” to CollaborateGetting “the Other Team” to Collaborate

• Use all five styles effectively

• Know when to use each style

• Are effective in convincing others to use Integrating/Collaborating

The Best Negotiators . . . The Best Negotiators . . .

• Negotiators are not always consistent or purposeful

• Effective negotiation requires effective use of power

Things to Remember About NegotiationThings to Remember About Negotiation

• Educate yourself

• Prepare your case

• Diagnose your conflict

• Know your BATNA

Increasing Expert PowerIncreasing Expert Power

• Best• Alternative• To a• Negotiated• Agreement

BATNABATNA

• The best I can expect to do if this negotiation fails

• The point at which it’s not useful to continue this negotiation

• If I can’t do at least as well as my BATNA in this negotiation, then I should not continue negotiating

What Is a BATNA?What Is a BATNA?

• A “bottom line” is arbitrary but a BATNA is rational

• Will keep you from settling for too little• Will keep you from walking away from

a good deal• Having your BATNA in mind keeps you

calm during negotiation

Advantages of Knowing Your BATNAAdvantages of Knowing Your BATNA

• Anticipate what other is likely to do• Help you accurately assess

whether other is cooperating or trying to exploit

• Tailor win-win proposals other is more likely to accept

Advantages of Knowing Other’s BATNAAdvantages of Knowing Other’s BATNA

• More power = better BATNA• BATNA clarification = expert

power• Knowing your BATNA translates

to better use of your power (because you can act with precision)

Power and the BATNAPower and the BATNA

• Assess your BATNA• Maximize your BATNA

Using Your BATNAUsing Your BATNA

• Build your interest tree.• Generate list of possible

alternatives to negotiating an agreement with other (your “ATNAs”)

• Clarify the ATNAs and adjust for uncertainty

• Maximize the options• Choose the best one

BATNA AssessmentBATNA Assessment

• You are negotiating with Sam’s Auto to purchase a car.

• He will sell you a 2000 Toyota Camry for $11,000 plus your 1996 Hyundai in trade.

• Should you say YES, NO, or negotiate further?

• To answer the question, use BATNA analysis

How Are BATNAs Used? ExampleHow Are BATNAs Used? Example

• Start your analysis well before going to Sam’s

• Step 1. Build your interest tree

Example (cont’d)Example (cont’d)

ASPIRATIONSPOSITIONSPRINCIPLES and VALUES NEEDSINTERESTS

(none – I haven’t

negotiated yet)

Less than $8,000 out of pocket

Get a good price for my

Hyundai

Not too high

mileage

Nice Japanese compact

Air conditioning

Cassette deck

Don’t want to be

cheated

Not break down –

commute to work

Survive work, get

ahead, career

Want a car that’s

reliable

Don’t want to overpay

Comfort while I

commute

Only have $9,000 in account – don’t want to try the

impossible!

Justice

Deficiency needs

Esteem

Basic safety

People should play

fair in business

Thou shalt not steal or cheat as a consumer

I ought to be frugal

Revised Interest Tree for Auto PurchaseRevised Interest Tree for Auto Purchase

Have personal transportation

Belongingness

Self- actualization

• It’s useless as an ATNA unless you can determine what the outcome will be

Account for UncertaintiesAccount for Uncertainties

• Litigation ATNAs common in legal disputing• Use case valuation

Uncertainties – Litigation ATNAsUncertainties – Litigation ATNAs

Recurrent Themes in Conflict DiagnosisRecurrent Themes in Conflict Diagnosis

• Sources of bias and inaccuracy when participating in an interpersonal conflict

• Seven steps of social behavior• Themes of conflict diagnosis

–A tornado

–An iceberg–Funny glasses

Conflict is never quite what it seemsConflict is never quite what it seems

Interpersonal conflict is like…

• What’s most important is usually hidden

Interpersonal Conflict Is Like an IcebergInterpersonal Conflict Is Like an Iceberg

Interpersonal Conflict Is Like Funny GlassesInterpersonal Conflict Is Like Funny Glasses

• Interpersonal conflict creates predictable errors of perception and judgment

My preconceived notions and beliefs about the conflict and disputant

My observations of the other disputant during the conflict

Result: My beliefs about his or her motives

What Is The Other Disputant Thinking?

What Is The Other Disputant Thinking?

The other’s behavior is simple and unambiguous

The other had an evil motive

The other intended to do exactly what he or she did.

Common Errors of Perception and Judgment During Conflict

Common Errors of Perception and Judgment During Conflict

Seven Steps of Social BehaviorSeven Steps of Social Behavior

1. Social stimulus

2. Disputant receives stimulus

3. Stimulus interpretation

4. Option generation

5. Weighing options

6. Disputant chooses

7. Disputant acts; new stimulus created

Important Metaphor: Interpersonal ConflictImportant Metaphor: Interpersonal Conflict

• Conflict as iceberg: what’s important often happens beneath the surface

Sources of ConflictSources of Conflict

6. Different conflict orientations 7. Structural or interpersonal power 8. Identity9. Values10. Displaced and misattributed

1. Resource conflicts2. Conflicts over facts

and law3. Preferences and

Nuisances4. Differing attributions

of causation5. Communication

difficulties

Keep These Ideas in MindKeep These Ideas in Mind

• Conflict usually springs from multiple sources

• Often the most obvious source isn’t the most important

• You must identify and address ALL sources, otherwise the conflict is likely to fester

The Feuding Business PartnersThe Feuding Business Partners

Partner 1 (does day-to-day work)

Partner 2 (supplied the

venture capital)

The conflict: allocating revenues

The tip of the iceberg: a resource and data-type conflict (who’s entitled to how much revenue?)

What’s beneath it: threats to identity and self-concept

Conflict DiagnosisConflict Diagnosis

Step 4. Assess the character of the conflict as constructive or destructive. What steps can be taken to influence the cycle?

Salient metaphorsImportant Metaphors: Interpersonal ConflictImportant Metaphors: Interpersonal Conflict

•Participants use the conflict to draw inferences about motives

Conflict Can Be Like Wearing Distorting Glasses

•These inferences are distorted•Self-Fulfilling Prophecies are created.

What Is the Other Disputant Thinking?

What Is the Other Disputant Thinking?

My preconceived notions and beliefs - about the conflict and disputant

My observations of the other disputant during the conflict

Result: my beliefs about his or her motives

•Conflict is either cooperative or competitive•Cooperation is better than competition•Perception becomes reality in cooperation and competition (“Deutsch’s crude axiom”).•Cooperation easily evolves into competition, but not vice versa

Deutsch's Theory – SummaryDeutsch's Theory – Summary

“Conflict is either cooperative or competitive”

Deutsch's Theory – Part 1Deutsch's Theory – Part 1

Cooperation: I believe that if you are helped, it helps me (promotive interdependence)

Competition: I believe that if you are helped, it harms me (contrient interdependence)

Cooperation and CompetitionCooperation and Competition

• Cooperation: as a joint problem to be solved

• Competition: as a contest that only one person can win

How Conflict Is Characterized in the Minds of the DisputantsHow Conflict Is Characterized in the Minds of the Disputants

Communication in Cooperation and CompetitionCommunication in Cooperation and Competition

• Cooperation: open, honest communication of relevant information – to promote self-interest

• Competition: closed, misleading, minimal – due to fear of exploitation

• Cooperation: characterized by efforts pooled to solve the mutual problem

• Competition: characterized by duplication of effort and minimal coordination

Coordination of Effort inCooperation and CompetitionCoordination of Effort inCooperation and Competition

• Cooperation: characterized by efforts of each disputant to help the other

• Competition: characterized by efforts of each disputant to obstruct the other

Efforts on One Another’s Behalf in Cooperation and CompetitionEfforts on One Another’s Behalf in Cooperation and Competition

• Cooperation: suggestions and proposals approved or taken at face value

• Competition: suggestions and proposals viewed with suspicion, devalued, rejected

Responses to One Another’s Suggestions and ProposalsResponses to One Another’s Suggestions and Proposals

Reactive DevaluationReactive Devaluation

Suggestion or proposal made by other disputant is devalued because other disputant is the source of the suggestion

• Cooperation: breeds feelings of friendship between disputants

• Competition: breeds hostility between disputants

Feelings of Disputants for One Another in Cooperation and Competition

Feelings of Disputants for One Another in Cooperation and Competition

• Cooperation: helping gives boost to the ego

• Competition: helping feels like loss of face, feels intolerable

Cooperation and Competition: Effects of Helping Other Disputant on One’s Ego

Cooperation and Competition: Effects of Helping Other Disputant on One’s Ego

• Cooperation: similarities exaggerated; differences minimized

• Competition: differences emphasized; similarities minimized or rendered invisible

Perceptions of Similarity and Difference in Cooperation and Competition

Perceptions of Similarity and Difference in Cooperation and Competition

• Cooperation: disputants tend to focus on completing the task

• Competition: disputants tend to focus on beating each other rather than on attaining personal goals

Task Focus and Person Focus in Cooperation and Competition

Task Focus and Person Focus in Cooperation and Competition

• Cooperation: productivity maximized; conflict contained

• Competition: productivity impaired; conflict escalates and spreads

Productivity and Containment in Cooperation and CompetitionProductivity and Containment in Cooperation and Competition

Meta-Conflict; Meta-DisputeMeta-Conflict; Meta-Dispute

An interpersonal conflict (dispute) about the handling or course of an interpersonal conflict

PolarizationPolarization

The tendency of neutral or moderate bystanders in a conflict to be pressured into siding with one disputant or the other

“Cooperation is better than competition”

Deutsch's Theory Deutsch's Theory

• More efficient: less expensive, less duplication of effort, less effort directed at mutual harm

• More effective results• Protection of relationships• Psychological benefits• “Psychological ownership” of

settlements results in better compliance

Deutsch’s Theory: Cooperation’s AdvantagesDeutsch’s Theory: Cooperation’s Advantages

“Perception becomes reality in cooperation and competition (‘Deutsch’s crude axiom’)”

Deutsch's Theory – Part 3Deutsch's Theory – Part 3

“Conflict becomes what you think it is!”

• If you think it’s cooperative, it will become more cooperative

• If you think it’s competitive, it will become more competitive

Deutsch’s Crude AxiomDeutsch’s Crude Axiom

Perceived promotive interdependence:Belief that by helping other disputant, one's own goals are promoted

Disputants try to help one another - in part, to improve one’s own situation

Feelings of friendship generated Perception that

goals, ideas, values are similar

Improved productivity

Other disputant given due credit for successes

Respect of other disputant's suggestions: basic trust

Information shared openly and honestly

Efficient division of needed tasks

Focus on the joint task

The Cooperation Cycle

The Cooperation Cycle

Perceived contrient interdependence:Belief that by helping other disputant, one's own goals are impeded

Disputants obstruct one another

Feelings of hostility & hatred generated

Perception that goals, ideas, values are dissimilar; other seen as “alien,” “evil”

Impaired efficiency and productivity

Other disputant blamed for lack of progress

Disputants mistrust one another

Disputants hide information, mislead one another

Duplication of tasks by mistrustful disputants

Focus on beating other disputant

The Competition CycleThe Competition Cycle

“Cooperation easily evolves into competition, but not vice versa”

Deutsch's TheoryDeutsch's Theory

Perceived promotive interdependence:Belief that by helping other disputant, one's own goals are promoted

Disputants try to help one another - in part, to improve one’s own situation

Feelings of friendship generated Perception that

goals, ideas, values are similar

Improved productivity

Other disputant given due credit for successes

Respect of other disputant's suggestions: basic trust

Information shared openly and honestly

Efficient division of needed tasks

Focus on the joint task

Event creating suspicion or mistrust

Trust shaken

How the Cooperation Cycle Is Disrupted

How the Cooperation Cycle Is Disrupted

Perceived contrient interdependence:Belief that by helping other disputant, one's own goals are impeded

Disputants obstruct one another

Feelings of hostility & hatred generated

Perception that goals, ideas, values are dissimilar; other seen as “alien”, “evil”

Impaired efficiency & productivity

Other disputant blamed for lack of progress

Disputants start to mistrust one another

Disputants hide information, mislead one another

Duplication of tasks by mistrustful disputants

Focus on beating other disputant

A Competition Cycle Begins

A Competition Cycle Begins

• Trial and adversarial negotiation have substantial disadvantages (usefulness of ADR)

• Using Deutsch’s crude axiom: changing perception can improve cooperativeness (basis of many ADR techniques)

• Preventing conflict escalation is easier than mopping up later! (balance early ADR intervention against “ripeness”)

Implications of Deutsch’s Theory for Legal and ADR ProfessionalsImplications of Deutsch’s Theory for Legal and ADR Professionals

Strategy 2: Principled Negotiations

• From Getting to Yes, key elements:– Focus on interests, not positions:

• Interests = needs, desires, concerns, fears that lead to “why”• Positions = specific demand

– Separate people from positions• People negotiate – are affected by egos, feelings, anger• “Step into their shoes” to discover their reasoning

– Focus on objective criteria• Facts, principles, standards can be used to frame an offer

– Develop mutual-gains options• A settlement must be superior to no agreement for both

parties• Propose options with gains for both parties