Schneider, A K --- "Teaching a new negotiation skills paradigm" [2012] LegEdDig 43; (2012) 20(3) Legal Education Digest 34

• Teaching a new negotiation skills paradigm

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Teaching a new negotiation skills paradigm

A K Schneider

Washington University Journal of Law and Policy, Vol. 39, 2012, pp 13-38

Effective negotiators need to choose skills that are appropriate given the context, client, and counterpart. The selection of skills is what matters, not the label given to them.

Through experience and reading more about adult learning, I realise that starting with theory (or even empirical studies that support theory) and then the practical is the wrong order. Adult professionals learn better by talking first about experiences and skills, and then focusing on framework or style selection.

There are at least three different explanations as to why we have labels. First, labels provide a way to organise our thoughts. Second, different labels come from different disciplines; psychology, law, business, and others have all created labels for the approaches and styles that are now used in the textbooks. Finally, as different academics and authors tackle the subject of negotiation strategies, we each create labels that we hope will be useful – and that will be used.

As we teach negotiation to beginning students, the labels of different approaches to negotiation are helpful in trying to help students understand the general differences in how negotiators might think about, and therefore how negotiators might then act in, negotiations. At the outset of learning about negotiation this division is helpful to understand typical assumptions that we might have coming from a war or sports metaphor of negotiation where there is a winner and loser. Getting students to question that assumption requires that we present them with an alternative – the integrative approach – so that they can see that not all approaches encompass a winner and loser.

Similarly, we use labels to describe styles or strategies in negotiation, again to simplify complex behavioural patterns, to demonstrate contrasts and show students that they have choices.

Negotiation, we all argue, is best informed by a multitude of disciplinary perspectives.

Perhaps one of the reasons that we keep coming up with new labels for both negotiation approaches and styles is the dissatisfaction with previous labels. And perhaps we come up with new labels in order to finally be the one to clarify and categorise a messy collection of behaviours and strategies.

Often, the first use of negotiation labels occurs in the use of labels for negotiation approaches. For example, most textbooks discuss negotiation as a choice between the distributive and integrative approaches. But when we use these words, we are describing both the view of negotiation (zero-sum or mutual gain) as well as the task (claiming and creating). As we teach, it becomes clear that we want our students to have the latter view – that negotiation can have mutual gains. At the same time, we know that the tasks – both claiming and creating – occur in virtually every negotiation. This becomes confusing for our students – mixing up the view of negotiation in which negotiators likely have one or the other perspective with the tasks of negotiation in which negotiators likely can engage in both.

In addition, the decision on approach – whether the view of negotiation or the task at hand – does not necessarily determine the skills needed to execute the negotiation. In other words, using the labels for the approach to negotiation does not completely describe what is going on at the table and can hide important nuances from our students.

Our next step after introducing the approaches is to spend time outlining various styles that negotiators may have. These words are virtually the same thing – a manner of behaving – and yet in negotiation we use approach to mean the assumptions and tasks of negotiation and use style to mean a particular set of behaviours used during the negotiation.

Second, even the descriptions that we use for approach and style overlap. We use ‘integrative’ in both. And synonyms abound – claiming value as an approach does not seem that different from competing as a style. The approach of creating value appears quite similar to a collaborating or problem-solving style. The nuances between all of these distinctions are often lost on students.

A third problem with existing labels, particularly in style, is the sheer number of labels that appear to say the same thing. For problem-solving, we have integrative, principled, or interest-based. Competitive is also hard bargaining, adversarial, or distributive. Accommodating is also sharing, soft bargaining, or cooperative. Only avoiding and compromising seem to escape the overlap.

Another problem with negotiation style labels is that they cover both less and more particular behaviours than we might assume looking at the name.

And the concepts of tone, social skills, trust, and ethics do not automatically fail under any single style label. Assuming that we could even get clarity and consensus on assertive skills or empathy skills, or agree that creativity falls under a collaborative style, the current style framework does not take into account one’s general sociability in the negotiation as well as one’s level of ethical behaviour.

When trying to teach skills, we need to unpack the labels into the behaviours that they actually describe.

Part of the teaching problem might stem from early reliance on the Prisoner’s Dilemma as a model of negotiation. The beauty of the Prisoner’s Dilemma is the clarity of choice it provides to the negotiator and, therefore, it’s easy use as an exercise to teach the importance of reputation, long-term relationship versus short-term gain, and clear communication. The problem is that most negotiations are not either/or choices to cooperate or defect. Once we move past the Prisoner’s Dilemma – and we generally do in reality – our choices are far more nuanced. The shift from the Prisoner’s Dilemma into the Negotiator’s Dilemma (the choice to create value or to claim value), which is generally used in most law textbooks, still does not add sufficient nuance in the choices that negotiators face.

Where we seem to have the most problems with our labels is with the competitive and problem-solving labels. A competitive negotiator could be unpleasant or friendly, could be bluffing or could be starting with a very high, justifiable offer, could be sneaky or straightforward, could share no information or could share the information most favouring her client, could ask questions to denigrate your case, or could ask questions to verify her research. Can a problem-solving style include someone who is not all that warm? When using a style label, we are not describing the actual behaviours or tactics.

Finally, focusing on a given negotiation style as the key choice assumes that the style does not change over the course of the negotiation. We know that most effective negotiators will moderate their behaviour as needed (respond in kind or respond to change the situation, ask questions to get information or ask questions to build rapport, etc.) throughout the course of the negotiation much like we know that effective mediators will change throughout the course of a given mediation. By focusing on styles rather than skills, we convey the message that style determines the responses and the behaviours. Instead, the most effective behaviours should be packaged in the most effective way, which might all be consistent with one style or might reflect the use of different styles throughout.

To be able to teach students how to be more effective negotiators, we need to teach them what to do, not by generalisable labels, styles, or approaches, but by the more specific descriptions of what to do in advance of and during the negotiation.

When training both lawyers and non-lawyers, I have generally used the styles framework provided by Thomas that is used in business school texts as well as law texts. Because it includes several more choices than problem-solving versus adversarial, I have found that the Thomas framework is more realistic for the variety of negotiations in which people engage. Furthermore, by including avoiding and compromising, the Thomas framework also permits a more nuanced discussion of how negotiation behaviour can vary over the course of a single negotiation.

In other words, if a negotiator has the ability to be assertive, empathetic, and creative, then he or she will be able to move among the styles outlined and will be able to choose wisely at any given time.

This concept builds on Robert Mnookin’s original assertiveness versus empathy tension by adding flexibility. The assertiveness versus empathy tension does a wonderful job of explaining to students how they would need to balance their natural urges and skills in order to be able to move around the negotiator’s dilemma – to both claim and create value well.

The ability to assert yourself in a negotiation can depend on your alternatives, your goals, your research or knowledge in the area, and your ability to speak persuasively. In order to assert oneself, a minimal skill might be some level of competence and knowledge. An average skill would be to have fully researched the situation and be well-prepared. Best practices would include confidence based on competence and knowledge.

A minimal skill would be to set a realistic, specific goal. Average skill would perhaps be to set this goal optimistically high with sufficient research into criteria to back this up. And best practices would include having mapped out framing arguments or other persuasive tools that would help sell your goals. Minimal skill in speaking would be the ability to explain your client’s position. Average skill would include speaking clearly about why this position is worthwhile. Best practices would include researching in advance what types of arguments, criteria (legal precedent, industry practice, etc.), and salesmanship techniques work best with your particular counterpart.

Being empathetic in a negotiation requires a complex mix of skills – a willingness to hear the other side, open-mindedness or curiosity, good questioning and excellent listening, among others. First, one needs the belief and understanding that your counterpart might have something to contribute. And so a minimal skill would be to distinguish between the rare win-lose negotiations and those that might have room for joint gain. An average skill would be the ability to find integrative potential. Best practices would be to translate the parties’ interests into realistic integrative proposals.

Second, one needs the skills to gather information about one’s counterpart to build the relationship in order to work together substantively. A minimal skill might be to ask questions of the other side in order to get information about them to help move the process along. An average skill would perhaps be to ask questions to uncover the counterpart’s interests and needs. Best practices would include having a learning conversation in order to better understand the counterpart’s client and that client’s situation in order to propose solutions that respond to those needs.

Similarly, a minimal skill in listening would be to let the other side explain their case without interrupting. An average skill would be to ask questions when they are done to both clarify and demonstrate one’s listening. Best practices would include looping or active listening to confirm that you accurately understand their perspective and that, even if you don’t agree with their position, you respect their position.

Talented negotiators work to find a variety of ways to get the job done both in their strategic choices as well as more flexible outcomes. Being flexible in negotiation allows a stylistic move from simple compromising to more sophisticated integrative solutions. It also helps to prevent stalemate. And so a minimal skill on flexible strategic choices might be choosing a style based on a particular context or counterpart. An average skill would be shifting your strategy or tactics in the course of the negotiation to respond to your counterpart. Best practices would include careful thinking about the reputation of your counterpart, selecting skills on that basis as well as your own skill set and your client’s situation, and then adapting your skills as needed based on your counterpart and newly acquired information in the course of the negotiation.

In terms of finding creative outcomes, Leigh Thompson writes about three types of creativity: fluency (the ability to create many solutions); flexibility (the ability to generate different solutions); and originality (the ability to come up with a unique solution). A minimal skill would be simply knowing your priorities so that you could do trade-offs at the table. An average skill could be preparing one or two different trade-offs that might work (cash payment in exchange for earlier settlement, length of contract in exchange for lower salary, etc.) Best practices would be to examine a variety of creative processes both before and during a negotiation – non-specific compensation, contingent agreements, adding issues, etc. – that could provide additional solutions.

The work of Daniel Goleman on emotional and social intelligence has made it clear that successful people manage their emotions and social skills in order to get along with others.

In a more specific negotiation context, we have seen this from several angles. The research on tone in negotiation shows that positive moods can make people more creative and more likely to use integrative strategies. The converse is also true – negotiators in bad moods are more likely to be competitive.

Some students might argue that a more effective personality cannot be taught – we are or are not, by the time we are adults, outgoing and sociable. This is not an issue of personality but rather of working on social skills that can be taught and improved. For example, in relation to setting the tone of the negotiation, a minimal skill might be to have a basic greeting. An average skill could be to think about how to set a better tone by having food, or ambiance. Best practices could include a conscious attempt to enter the negotiation in your own good mood and actively work to ensure that the other side is similarly situated.

In terms of setting rapport, for example, Leigh Thompson suggests that a “[s]avvy negotiator[] increase[s her] effectiveness by making themselves familiar to the other party.” A minimal skill would be to have a level of cordiality. An average skill level would be to schmooze with the other side, asking questions about them, and breaking the ice. Best practices would include advance research to find areas of commonality and to be genuinely friendly & curious.

Perceptions of a negotiator’s ethicality – his trustworthiness and willingness to follow the ethical rules – has a direct impact on reputation. And reputation – the perception of ethicality – is directly linked to effectiveness in negotiation. A minimal level of skill would be to follow the professional rules of responsibility and not actively deceive the other side. An average level of skill would be to also view possible deceptive behaviour through the lens of likely ramifications including your reputation. Best practices would include being actually trustworthy and treating the other side fairly. The levels of trust, outlined by Roy Lewicki, could also be used to measure skills as we want to be trustful as well as trustworthy. A minimal level of skill would be to create calculus-based trust between oneself and one’s counterpart. An average level would work on knowledge-based trust, where repeated interactions create more predictable responses. Finally, best practices might be striving for identification-based trust where the parties create a mutual understanding of each other’s needs and can act on their behalf. This latter level of trust might not be realistic in between opposite sides of the negotiation but understanding the incentives that create this level of trust can be very helpful, particularly in repeated interactions. Being both trustworthy and trustful includes defending yourself against the unethical. A minimal level of skill would be to assume that others might lie to you and contemplate what you can do about that. An average level of skill would include asking defensive questions to double check their assertions and writing compliance measures into the contract. Best practices could include building a sufficiently strong relationship so that it is more difficult for others to lie to you.

Negotiation books generally provide students with a framework for how to decide which style to engage. Similarly, the use of a framework for organising our skill choices remains important. As the negotiator is the constant, at whatever level of skills the negotiator is going into the negotiation, the choice of which skills to use should be determined by examining three key ‘C’ variables: the Client, the Counterpart, and the Context of the particular negotiation. In the legal context, the interests of our clients should have an impact on our behavioural choices.

We also need to be aware of how certain skills interact with the other side and the stylistic and skill choices that our counterparts make in the course of the negotiation. Different skills respond better or mesh more effectively depending on the situation. When teaching students, it is extremely helpful to review how different styles might interact and, therefore, what skills should be utilised to increase effectiveness in any given interaction.

Finally, the context should have an impact on the skills chosen. We would imagine that family, personal injury, neighbourhood dispute, business deals, or government regulation cases would all have different expectations and different skills might be highlighted in each case.

So perhaps labels aren’t so terrible after all. More, it is that labels can hide or overshadow the real focus of negotiation skills training. We know that we need to categorise in order to convey a significant amount of complex information. At the same time, we need to teach the weaknesses of labels and be sure that our students are not over-reliant on the simplification that labels provide.