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Summary QLLM385-Week 5 – strategies of negotiation – Readings
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Week 5 – strategies of negotiation – ReadingsCarrie Menkel-Meadow, “Towards another view of legal negotiation: The structure of
problem solving”
Introduction
Successful negotiations represent a compromise of each party’s position on an ordinal scale
of numerical values. Writers and negotiators who take such an adversarial approach limit
themselves unnecessarily because they haven’t fully examined their assumptions.
The problem-solving model of negotiation seeks to demonstrate how negotiators can more
effectively accomplish their goals by focussing on the parties’ actual objectives and
creatively attempt to satisfy the needs of both parties.
The primary criterion for evaluation of a negotiation model is the quality of the solution
produced.
Assumptions of the traditional model: adversarial negotiation
The approach to this kind of negotiation seeks to maximize victory. It is based on the
assumption that the parties desire the same goals, items or values. The parties must be in
conflict and bargaining for the same scarce items, so the solution should be about division of
the goods. These negotiations will therefore be a zero-sum game and the bargaining is known
as ‘distributive’. The more one party wins of the resource, the less the other party receives.
Because negotiations are conducted in the shadow of the courts, the negotiators assume that
what is bargained for are the same limited items that a court would award in deciding the
case. These assumptions affect the conceptions of negotiations and the behaviours
recommended for successful negotiation.
The structure and process of adversarial negotiation – the literature suggests a stylized ritual
of struggle, planned concessions after high first offers, leading to a compromise;
-linear concessions on the road to compromise – because parties fear the cost, length and
winner takes all quality of litigation, most cases are settled mid-range between each party’s
initial demand. Parties set target points (what they would like to achieve), resistance point
(points that the party will not go below) and offer and demand with some concessions. The
process results in a compromise at some point where target or resistance point overlap for the
two parties. After the resolution of the first offer, parties proceed in a pattern or offer-
counteroffer until a compromise solution is reached somewhere within the bargaining range.
Although this model encourages compromise, it frequently fails to provide a satisfactory
solution for the parties.
-unproductive competition – adversarial assumptions affect the quality of the solution to
negotiated problems and the process by which these solutions are reached. The adversarial
negotiation produces a competitive process which may cause parties to miss opportunities for
expanding the range or solutions available. The difficulty with the stylized ritual of
offer/response, counteroffer/counter-response and concessions may not be of assistance when
the issues are multi-dimensional and parties are seeking to discuss a variety of solutions at the
, same time. This strategy may also force parties into attack and defensive postures which may
inhibit creativity in finding solutions. Adversarial negotiation processes are frequently
characterised by arguments and statement rather than questions and searches for new
information. The principle that one should hide information about one’s real preferences is
based on assumptions of human behaviour that negotiators are manipulative, competitive and
adversarial. The danger of acting on these assumptions is that opportunities for a better
solution may be lost. This also leads the client to depend a lot more on the lawyer due to his
expertise in the field and does not want to structure the proceedings based on what he desires.
The underlying assumptions of the adversarial model –
-the zero-sum game: assumptions of win/lose with equally valued limited resources – the
negotiator’s goal is to maximize gain by winning as much of the material of the negotiation
as possible. The assumption here is that there is only one issue and that both parties desire
equally and exclusively the thing by which that issue is measured e.g. money. Most games
however are not zero-sum games as there may be some room to compromise, however little.
Zero-sum games may be more the exception than the rule. Negotiators could use the
negotiation process to explore the possibility of solutions which may be different and more
advantageous to the parties than the ones the court must choose. At the core of zero-sum
games is the assumption that both parties value the resources equally and this may limit the
solutions to problems both in terms of the number of solutions and their quality.
-Negotiating in the shadow of the court: assumptions of polarized results and limited
solutions – negotiators often conclude that they are limited to what would be available if the
court entered a judgement, so they are likely to limit their solutions to money damages and
injunctions. This is similar to their conception of themselves either as winners or losers. An
example of this is how negotiators plan their targets to be in line with what a court would
award if the case goes to trial. Lawyers may prefer this limited conception because it makes
evaluation of possible outcomes clearer and easier.
Differing needs or values of the parties may make one party’s subsidiary term another party’s
crucial term.
Consequences of the adversarial assumptions: the limits of linearity
Zero-sum assumptions limit negotiations by assuming that parties value single issues equally.
They may in turn fail to consider whether the parties have other needs/issues that may go
unresolved.
By focussing on maximizing immediate, individual gain, negotiators fail to appreciate the
long-term consequences of a particular solution.
Zero-sum single issue conceptions of negotiations fail to consider transaction costs in terms
of process costs to the client by using the adversarial approach, and the costs of a less than
optimal solution.
The adversarial model can lead to stalemate/no agreement by failing to exploit differences in
values that could broaden the range of possible solutions or increase the gain to one party
without decreasing the other. Viewing negotiation as an arena with only one victor may result
in withdrawal, submission, dependence and resentment on the party of the ‘weaker’ party.
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