HOW NEGOTIATION WORKS

1. AIMS OF NEGOTIATION
Some scholars estimate that as much as 90% of the legal matters handled by lawyers eventually
i n v o l v e negotiation. One study of tort, contract, and real property cases in urban state trial
courts found that 61.5% of cases were disposed by a settlement or voluntary dismissal." About
two-thirds of criminal cases are disposed with guilty pleas! In federal courts, over 80% of
criminal cases end in guilty pleas, presumably negotiated.'
Like all other work done by lawyers, negotiations can be separated into two general categories:
transactions and dispute resolution. In transactional negotiations, the parties try to enter into
relationships in which they voluntarily agree to terms that will govern their future conduct.
2. CONTEXT OF NEGOTIATION: INTERESTS, RIGHTS, AND POWER
To understand how negotiation works, consider each party's interests, rights, and power. Every
dispute or transaction occurs against a backdrop of these three factors. The differing interests of
the parties, of course, bring them to the bargaining table. But the rights and power of the parties
influence the result because the parties know that if an agreement is not reached, "a more
coercive process will ensue.?" In that more coercive process which may be litigation or economic
conflict, each party will ask for vindication of its rights and use its power.
2.1 INTERESTS OF THE PARTIES
"Interests are needs, desires, concerns and fears, the things one cares about or wants. They underlie
people's positions the tangible items they say they want."? Common interests are resolving the
matter promptly, maximizing financial position, developing or maintaining long-term relationships,
or addressing psychological needs. Each party might have many interests, and some of them might
conflict.
2.2 RIGHTS OF THE PARTIES
"Rights" are independent standards that demonstrate the legitimacy or fairness of a party's
position. They can be based on formal legal rules (case law, statutes, and regulations) or contracts
between the parties. They m a y be grounded on socially accepted standards of behaviour, such as
reciprocity, precedent, equality, and seniority,"
In dispute resolution negotiations, bargaining occurs in the "shadow of the legal claims and
defences raised by the parties before the particular tribunal. Aside from the substantive legal
positions taken by the parties, they may also have different procedural rights that frame the
negotiation. Examples are rights to discovery, to joinder of additional parties, to file pre-trial
motions, or to file interlocutory appeals. Even a motion for an adjournment or continuance of the
proceedings might be a significant right for a party in a particular case.
2.3 POWER OF THE PARTIES
Power is "the ability to coerce someone to do something he would not otherwise do.

Although rights can coerce the party against whom they are enforced, power-in the sense used in
h er e is coercion without resorting common ways. One way is "aggression-such as sabotage or
physical attack" (or more commonly, the pressure of bad publicity); the other way is
"withholding the benefits that derive from a relationship, as when employees withhold their
labour in a strike.
For some people and in some negotiations, relative power is the determinative factor. For
example, when you want to buy a computer, the basic terms of the contract-the price, available
accessories and software, and warranty are not negotiable. When you find the computer you want
to buy, you must accept the terms on which the manufacturer will let it be sold. But when
General Motors wants to buy a computer, it can either dictate terms to a much smaller company
or negotiate on an equal footing with a company large enough to have market power that matches
GM's.
Even in a setting where one party starts out with a substantial power disadvantage, relative
power does not necessarily determine the result. For example, car dealers have bargaining
resources vastly superior to those of most car buyers. But dealers must make sales in a competitive
market. Indeed, during certain times of the year, dealers need to sell cars to get them out of
inventory. At those times, buyers may have significant power, at least in regard to the valuing of
the trade in, the financing package, or the availability of some options. Thus, relative power can
be variable and does not always determine the negotiation's outcome.
3 APPROACHES TO NEGOTIATION
The two primary approaches to negotiation are adversarial and problem solving." The
adversarial approach focuses on the rights and power of the parties. The problem solving approach
focuses on the interests of the parties. Nearly all negotiations involve some degree of both
approaches, but a description of the distinction between these two types of negotiation help make
appropriate choices in selecting negotiation strategy and tactics.
3.1 ADVERSARIAL APPROACH TO NEGOTIATION
A negotiator taking an adversarial approach views bargaining as an issue of distribution of
limited resources. This type of bargaining is also called "zero-sum" negotiation because each dollar
that one side receives (or does not need to pay out) is one dollar that the other side loses. If there are
three claimants to a Rs3,000 pot of money, and if one claimant takes Rs1,500, the other two
must split the remaining Rs1,500. Haggling over the price of a new car is a classic example of
distributive bargaining. For every Rupee that the price comes down the buyer gains a dollar, and the
seller loses a dollar.
In an adversarial negotiation, each party takes a position that she or he is entitled to
something. In a personal injury case, for example, in which the plaintiff seeks Rs500000 damages
for injuries incurred in an automobile accident, the parties view the negotiation in terms of a
continuum between zero dollars (the amount the defendant initially says it will pay) and the Rs
500000 demanded in the plaintiff's complaint. Depending on their assessment of the strength of their
respective cases, the plaintiff and the defendant will each select an "opening position" on this
continuum and determine a bottom linen the position at which the particular party will walk away
from the negotiation. Negotiation then becomes a contest in which each party makes concessions,
adopts fallback positions, and either eventually agrees to a compromise or leaves the bargaining

table.
3.2 PROBLEM-SOLVING APPROACH TO NEGOTIATION
While the adversarial approach to negotiation focuses on the distribution of limited resources,
the problem-solving approach emphasizes the integration of the resources each side brings to the
table so that each side ends up better off. Earlier in this book, we used the expression problemsolving to describe general methods of identifying a client's problem, predicting what will happen in
the future, and creating and implementing strategies to control what will happen in the future.
In the problem-solving model, each side is assumed to bring something of value to the deal
that can create benefits to both parties, and the negotiators try to integrate these interests in a
settlement or deal. A good illustration is a negotiation to create a joint business venture in which
one party puts up the capital and the other provides the research and labour. Such negotiations
are not viewed as zero-sum games but win-win situations. Many negotiations present integrative
opportunities-even those which initially may appear to be purely distributional. In a personal injury
setting, for example, the plaintiff's interest in a quick resolution of the dispute and the defendant's
interest in delayed payment of full damages might be conducive to a structured settlement with a
lengthy payout schedule. (A structured settlement is one in which the defendant makes payments
stretched out over a period of years rather than in one lump sum immediately.)
Rather than concentrating on the rights and power of the parties, problem solving negotiators
focus on accommodating the interests of all the parties. The adversarial approach to negotiation
results in positional bargaining, each party takes positions based on its evaluation of the strength or
weakness of the parties, "rights" in the case. In their well known book on problem-solving
negotiation, Getting to Yes, Roger Fisher and William Ury reject this approach: When negotiators
bargain over positions, they tend to lock themselves into those positions. The more you clarify your
position and defend it against attack, the more committed you become to it. The more you try to
convince the other side of the impossibility of changing your opening position, the more difficult it
becomes to do so. Your ego becomes identified with your position. You now have a new interest in
"saving face"-in reconciling future action with past positions making it less and less likely that any
agreement will wisely reconcile the parties' original interests." Fisher and Ury argue that by
focusing on interests and not positions, parties can generate a variety of options that will provide
for mutual gain for both of them. By identifying their own interests and recognizing the interests of
the other party, both parties can collaborate to develop an agreement amenable to both.
Nonetheless, problem-solving negotiators do recognize that there are instances where
interests cannot be integrated satisfactorily, and negotiation will fail. While adversarial negotiators
select "bottom lines" at which they will walk away from the bargaining table, problem-solving
negotiators identify a BATNA-a Best Alter native To a Negotiated Agreement-as
a standard
against which any proposed agreement should be measured. A BATNA is more flexible than a
bottom line position.
3.3 USE OF THE DIFFERENT APPROACHES
Many commentators express a strong preference for problem-solving as a substitute for
adversarial negotiation. The approach described in this book is more flexible. Most negotiations
are not purely adversarial or problem-solving. Even a usually adversarial negotiator in a personal
injury case, for example, might engage in problem-solving on an issue such as the payout schedule,

taking into account the plaintiff's immediate financial needs and the defendant's preference to pay at
least some of the money later rather than now. And in many problem solving negotiations, the parties
may engage in bazaar-style haggling when it comes down to "nickel and dime" issues at the
conclusion of the bargaining.
These mixed approaches reflect the reality of how lawyers really do negotiate effectively. It
is a complex process involving both distributive and integrative issues, all against a backdrop of the
parties' interests, rights, and power. Understanding the differences between the two approaches can
be helpful in developing effective strategies on behalf of your client and crafting arguments or
appeals to the opposing party. If you assume that one approach is always preferable to the other, you
will be less effective at negotiation than another person who can function well using either approach.
NEGOTIATION PREPARATION: ASSESSING THE PARTIES INTREST
1.1 INTERESTS, RIGHTS, AND POWER
All negotiations are greatly affected by the parties interests, rights, and power. Pre
negotiation preparation necessarily includes an assessment of the interests, rights, and power of both
your client and the other side.
1.2 ASSESSING THE PARTIES' INTERESTS
This process requires identifying the interests of each party, prioritizing your client's
interests, and predicting the other party's priorities.
1.2.1 TYPES OF INTERESTS
Interests are the needs, desires, concerns, fears, and expectations of a particular party.
Although this definition seems quite simple, the process of identifying the interests of client and
those of the other party is not so easy. Client may be unsure or ambivalent about what he really
wants, or he may be absolutely certain about his needs at the initial interview, only to change his
mind completely on the eve of the deal dosing or trial.
In regard to identifying the interests of the other parties, access to them is limited, and their
communications might not be totally forthright. The task, therefore, is a reconnaissance mission to
learn as much as possible about the other side's interests. To engage in this process, think of various
types of interests to explore. Although the following categories may not be applicable to all cases
and some of them overlap, they provide a framework to assure a thorough investigation of interests:
1. Financial interests. These include not only the short-term money effects of the transaction or
dispute but also any long-term financial ramifications or tax consequences for the party.
2. Performance interests. Especially in transactional settings, performance concerns may be just as
important as price. In an instalment sales transaction, for example, the seller might be as interested
in the security and non performance remedy provisions of the agreement as in the payment schedule.
Or in the sale of a house, the seller who is relocating to another area in a short time may be willing
to accept a much lower price if the buyer pays cash (so that the seller does not have to worry about
whether the deal might collapse if the buyer cannot get a mortgage).

3. Psychological needs. In many transactions and disputes, one or more of the parties has an
emotional stake a seller has lived in her house for 25 years and is ambivalent about having to move;
each spouse in a child custody dispute feels that the other is an unfit parent; a commercial buyer feels
that it was overcharged in a previous transaction; a plaintiff in an action against an insurance
company may have mixed feelings, wanting both vengeance and the certainty that compensation
will be forthcoming; an environmental group may be up in arms because it feels that a factory
deliberately and greedily ignored clean air standards. All though these feelings might not be rational,
they are real and certainly affect the dynamics of bargaining. Indeed, in some dispute resolution
negotiations, the primary interest of a party is not the relief requested in the complaint but an
apology or public recognition of wrongdoing.
4. Reputational interests. Some parties might be concerned about the effect of the transaction or
dispute on their reputations. They may fear, for example, that this case might set a harmful precedent
in the future or that adverse publicity will embarrass them.
5. Relationship interests. Many transactional and some dispute resolution negotiations involve
repeat players: buyers frequently purchase from particular sellers; unions regularly bargain with
management for collective bargaining agreements; parents in a custody dispute may continue to be in
close contact with each other; or public interest groups may consistently litigate against the same
governmental regulatory bodies. In those situations, although the relationship between the parties on
some level will be adversarial, on another level it will require cooperation. After a collective
bargaining agreement is reached, for example, the employees will be working for management,
and, even after the public interest group has settled or litigated its case; it will probably be dealing on
a regular basis with matters before the regulatory body. In many cases, therefore, parties may have a
stake in maintaining a working relationship.
6. Liberty interests. These may include not only freedom from incarceration in a criminal case but
also freedom to travel, to engage in a particular occupation, or to spend time with one's family.
Criminal defendants nearly always want to avoid imprisonment. But other dispositions can also
have a significant impact on the defendant's liberty: community service obligations may interfere
with the defendant's job obligations; a record of a conviction might preclude employment in a
particular occupation; or participation in a drug program might interfere with family life.
7. Basic human needs. This catch-all category is a useful tool in double-checking your investigation
of the parties' interests. It includes security, economic well being, a sense of belonging and of being
appreciated, and control over one's life. These needs are not exclusive to individuals. Groups,
corporations, government agencies, and nations, to some extent, all have these interests, and they
should not be overlooked.
1.2.2 IDENTIFICATION OF PARTIES' INTERESTS
Asking what end results is desired, and then why this outcome is so important. Do not rush
into accepting the initial response, but try to obtain a complete listing of all the client's concerns. If
the client defines her needs and interests only vaguely, you will want to narrow your questions,
perhaps by exploring whether the client has any interests in the categories described. If one does not
succeed with this approach, then ask about the kinds of concerns that other clients have had in these

situations. It is often helpful to write down client's responses on a pad or white board which the
client can read while you write; seeing the answers charted out, the client may be encouraged to
articulate other concerns.
During this process, client may be reluctant to express some concerns, especially those of a
psychological nature. In a child custody dispute, for example, a parent may not want to litigate to do
it. Sensitive, active listening helps in such situations. To obtain a thorough account of all client's
interests, one has to be non judgmental so that client feels that he can openly confide.
It is also need to identify the interests of the opposing party or parties to understand fully the
context for the negotiation. Sometimes the other party articulates its needs and interests clearly and
forthrightly. Other times, however, the opponent will leave you bewildered either because of its own
negotiation strategy or because he has not thought out its concerns thoroughly. In those situations,
we may want to adopt an approach similar to the one we use with your client and ask the other
party's lawyer why the other party has adopted a particular position and why the other party rejects
our client's position. If this does not work, we might want to explore possible interests with our
opponent by asking questions such as "it seems to me that you are interested in" to evoke an
affirmative or corrective response. A similar technique is to make a proposal, tell the other side that
our proposal helps to satisfy an interest that we assume them to have, and then listen carefully to
their reaction. Sometimes phrasing a proposal as a hypothetical results in helpful discussion because
the other side may not feel as threatened by it as by an actual offer ("If we were to offer X, what
effect would that have on your client's situation?).
The other party and its lawyer, however, are not the only sources for identifying its interests.
Our client may know the other side's interests and concerns from personal experience. This is
certainly true in domestic relations or labour management disputes. And many commercial and
corporate transactions involve repeat players who have intimate knowledge of each other's interests.
Additional information can be obtained from other lawyers or third parties who have previously
dealt with our opponent and in a dispute or transaction with an organization, news articles might
reveal its financial, reputational, and policy priorities.
I.2.3 PRIORITIZING INTERESTS
The final step in assessing the interests of the parties is to prioritize the interests of our client
and the other party. Obviously, the lists we compile in regard to our client's interests and our guesses
as to the other party's interests will in many cases be lengthy.
HIGHEST PRIORITIES
Interests on a list might be inconsistent with others on the same list. In negotiating a business
partnership, for example, our client may articulate interests both in retaining control over the
direction of the business and in limiting the time he wants to spend on it. To get an adequate
assessment of the interests of both parties, work with your client to determine his two or three most
important interests in this transaction or dispute and try to speculate on the priorities of concerns for
the other party. Remember that each of the parties' interests may change as the bargaining
progresses. As that happens, we may want to revisit our assessment of interests and priorities. By
identifying these priorities we lay the groundwork for determining whether or not a problem-solving
approach will settle the issues.

21.3 ASSESSING THE PARTIES' RIGHTS

Novice lawyers tend to think of negotiations as driven primarily by legal concerns. The non
legal interests-financial, psychological, relationship, reputational needs-can be the driving force
behind the parties' behaviour. Still, legal negotiations do take place in the "shadow of the law," and
it would be a mistake to ignore totally the legal rights of the parties in preparing for negotiation.
Although many negotiations do not include lengthy legal arguments, the parties evaluation of their
respective rights can have a significant impact on the outcome.
In dispute resolution negotiations, assessment of the parties' rights requires predicting the
possible outcome if the case were to be tried in court. This includes evaluating the strengths and
weaknesses of the parties legal and factual theories. The lawyer for the party going forward (the
plaintiff, the prosecutor, or the movant) should identify all possible claims for relief (or, in a criminal
case, the range of charges) and the legal elements for each. The lawyer should then determine
whether the evidence will establish a prima facie 9). Finally, the lawyer should identify the possible
legal remedies that would be available if the case is proved. The resisting lawyer (representing the
defendant, for example) should consider whether any of the claims is based on an accurate
understanding of the law. Then, the resisting lawyer should marshal the available evidence to
determine whether the parry asserting the claim can establish a prima facie case. Finally, the resisting
lawyer should consider whether any affirmative defenses can defeat any of the claims and whether
the evidence will establish the minimum facts to prove those defenses.
When considering legal theories in preparation for negotiation, be especially careful about
burdens of production and persuasion. In litigation, the winner is the party who either carries all of
his burdens or prevents an adversary from carrying all of his. The question is not whether a
defendant is liable or guilty, but whether the evidence proves that according to the applicable
standard and negotiation "in the shadow of the law" inevitably takes this into account. In a criminal
case, for example, the prosecution's need to prove its case beyond a reasonable doubt has a
substantial effect on the plea bargaining process.
Rights assessment is also necessary in preparation for a transactional negotiation. Here, the
inquiry is not about the possible outcome of the case at trial, but about legal requirements governing
the transaction or the common business practices that create context for the deal. With the help of our
client we also investigate the common business practices for such transactions, such as pricing,
performance, and quality control standards. Certainly, we should not feel bound by the sample
agreement in the form book or common business practices, but you need to understand that the other
parties may be entering the negotiation presuming that these customs constitute their informal
"rights."
Often, novice lawyers out of fear that the negotiations will fail and will prematurely reach a
deal with an opponent without learning crucial facts. Identify the information that is indispensable to
our appraisal of the situation so that we can adequately prepare a negotiation strategy. In a
transactional setting, obtain facts about industry customs, information about past dealings between
the parties, and technical information about the products or services involved. In a dispute
negotiation, examine your chronology, and identify the missing witnesses, documents, and facts that
are essential to a basic understanding of the events.
The rights context of most negotiations is not stagnant but can change drastically depending

upon the legal manoeuvring of the parties. We often have the ability to change the legal relationship
of the parties before or during negotiation. In the dispute resolution context, for instance, one can
add leverage by suing, making strategically sound motions, conducting extensive discovery, filing a
counter claim, or seeking sanctions for unreasonable conduct. Similar things can happen in
transactional negotiations. For example, in a commercial real estate sale where the price is deflated
because of zoning restrictions on the property, the situation will be changed radically if the owner
succeeds in getting a zoning variance. In preparing for your negotiation, you should identify those
possible changes.
21.4 ASSESSING THE PARTIES' POWER
Power is the ability to coerce someone to do something that person would not otherwise do.
Assessing the parties rights means examining how legal or other objective standards affect the
parties strengths and weaknesses. But assessing the power context explores how non legal, coercive
factors do the same thing. Although, as we shall see, power differentials do not necessarily determine
negotiation outcomes, they can have a significant impact on the bargaining process. In your
preparation for a negotiation, therefore, you need to assess the potential effects of power
imbalances.
2.1 TYPES OF POWER
The primary sources of power in legal negotiations are economic, social, psychological, and
political power, and expertise
1. Economicpower: Obviously, the ability of a party to bring its resources to bear on a transaction or
dispute can impact the negotiation. When a large corporation negotiates to acquire a smaller,
family-run business, for example, the acquiring company will probably have at its disposal a
much greater staff of lawyers, accountants, and tax experts. Similarly, in a criminal case, the state
can overwhelm many defendants with its cadre of assistant district attorneys, investigators, and
expert witnesses. And in the labour-management context, the company, as owner of its facilities,
has the right, within legal limits, to set the conditions of work for its employees. In many cases, the
dynamic of the negotiation is driven by these types of power imbalance.
Nevertheless, parties with large resources may suffer from limitations on their power, and
parties with ostensibly fewer resources may have access to other means of economic power. The
large corporation seeking to acquire the smaller company may be involved in numerous other
transactions and litigation and may be able to devote only limited staff to this deal. And the
privately-owned company may have retained a small, boutique law firm that specializes in
representing "under dogs" in such negotiations. Likewise, while the heavy caseload of many urban
prosecutors may severely inhibit their ability to press all cases to the fullest extent possible, some
white collar defendants may have the ability to retain legal "dream teams" and in labour management
negotiations, the employees may have an advantage if they are few in number, have highly
specialized skills, and operate expensive and complicated machinery. The company has invested
heavily in equipment, and it may be cheaper to raise pay than to let that equipment lie idle while
hard-to-replace workers are on strike.
2. Social pourer: Some transactions and disputes occur within a context where the parties can wield

significant power within a given geographic, fraternal, religious, or similar community. For instance,
suppose a young retailer has recently opened a business in a small town and negotiates a contract
with a well-established and prominent wholesaler. Both parties certainly know the pressures that the
wholesaler can exert on the retailer's business relationships in the town, on his position in the
community, and on his family and personal life.
Differences in social status between the parties can create power imbalances in the bargaining
process. A visit to a high volume urban eviction or misdemeanour court will starkly reflect this
problem. Court personnel and judges often treat the assistant district attorney assigned to a
particular courtroom or a "regular" landlords' lawyer who consistently appears in a court with a
difference that is not shown to low-income litigants or defendants. A defendant who does not
speak English is at an even greater disadvantage in attempting to manoeuvre through the court
process. In such an environment, social factors obviously influence negotiations.
3. Psychological pourer: All parties to a negotiation have certain psychological needs: desires,
fears, anger, and other emotions and sometimes one or more of the parties try to exploit those needs
in negotiations by wielding psychological power. In a child custody dispute, for example, one parent
might threaten to poison the children's minds against the other unless the latter agrees to more liberal
visitation terms. Likewise, in some landlord-tenant negotiations, the land lord might threaten to lock
the tenant out of his apartment or disconnect the utility service, even though the landlord has no legal
right to take such action. Threats like these can have profound effects on low-income tenants who do
not know their rights-or on anybody who wants to live in his home in peace. Even in corporate
bargaining, negotiators often attempt to play psychological games with their adversaries to obtain an
advantage.
4. Political power is the ability to influence public officials, decision-makers, or opinion-makers,
In high-profile civil rights, antitrust, or products liability cases, parties often attempt to enlist the
support of government agencies or key media figures to influence the negotiations. But even in
less dramatic cases, parties can try to exert political power.
5. Expertise. In some negotiations one party has greater expertise on certain issues involved
in the transaction or dispute, and that knowledge can result in a power imbalance. Imagine, for
instance, a company official with no computer background who is negotiating for the purchase of a
software program for all his firm's accounts and records. Even if he educates himself on the
basics of computer software, the salesperson will probably be at an advantage because of her
superior knowledge about the product.
The power relationship between the parties is not static. You or the other party can take steps
either before or during the negotiation to change the power balance and those changes can
significantly impact the course of the negotiations. In preparing for your negotiation, you should also
identify those possible changes.
Obviously, if one party in a negotiation has substantially more power in a particular area, the
other party can either try to increase its power in the same area or develop power in some other area.
For instance, a small company with limited resources locked in an antitrust dispute with a large
manufacturer that has huge resources can increase its economic power by forging alliances with
other small firms that are experiencing similar problems.

2. Asserting rights to affect the power balance. Often when a power imbalance exists between the
parties to a dispute, the less powerful party can attempt to equalize the playing field by seeking
rights-based relief. Litigation, for example, can be used by less powerful parties to protect their
interests against more powerful opponents. The prime example of the use of adjudication for this
purpose is a federal civil rights action against a school system alleging racial discrimination, in
which the plaintiffs rely on the protections of the civil rights laws and the procedural protections of
the federal courts to rectify the power imbalance between themselves and local government
officials.
22.1 DETERMINING YOUR CLIENT'S BATNA
The first step in developing a negotiation strategy is to identify client's BATNA or Best
Alternative to a Negotiated Agreement. Your BATNA is your walk away alternative. It's your best
course of action for satisfying your interests without the other's agreement. If you're negotiating
with your boss over a raise, your BATNA might be to find a job with another firm. If you're
negotiating with a salesperson, your BATNA might be to talk to the store manager or, if that fails,
you might go to another store. If one nation is negotiating with another over unfair trade practices,
its BATNA might be to appeal to the appropriate international tribunal.
Determining the client's BATNA is valuable whichever approach you eventually use in the
negotiation, either adversarial, problem-solving, or a combination of both. Although the alternative
method, the fixing of a bottom line helps your client to resist the pressures of negotiation by
setting rigid bargaining limits, it has a number of disadvantages, at least at the beginning of our
preparation. First, bottom lines reduce the potential for problem-solving negotiation. By focusing
on a fixed preconception of what outcome is acceptable, it ignores the possibility of unforeseen
solutions that might develop during the negotiation." After our review of the alternatives to
negotiation, the client might decide that the negotiated solution must exceed or at least equal
something she determines in advance. But if that decision is made too early, it might preclude a
fair amount of problem solving brainstorming during the negotiation.
Second, bottom lines are sometimes set too high. At the beginning of the negotiation process,
your client's expectations may be unrealistic. But once they are crystallized into a bottom line,
those expectations become a position that is hard to abandon even when it turns out later to
be unrealistic. The converse can also be true. In some circumstances the bottom line may be too
low, but because it is a position, the client might abandon it only reluctantly.
To determine your client's BATNA, you and your client should review your assessments of the
parties' interests, rights, and power (Charts 21A, 21B, 21C, and 21D). From these
assessments, generate options by identifying the possible alternatives to a negotiated
settlement. From your interests assessment, consider the alternatives that your client can
undertake herself to pursue her interests outside of any relationship with the other party. Then,
from the rights assessments, identify what rights the client can assert before a court, agency, or
arbitrator to address her interests. Finally, from the powers assessment, consider alternative
ways that your client can wield power to coerce the other side into meeting her interests.
After identifying possible alternatives to negotiation, you and your client should evaluate
each of them to determine one or two BATNA's. You and the client should try to imagine the
potential consequences of each option and consider its advantages and disadvantages. Although
there is no simple formula for this evaluation, the client should consider: (1) whether a particular
option meets those interests the client considers to be top priorities, (2) the strengths and

weaknesses of the different parties' legal and factual theories, and (3) any power imbalance in the
relationship with the other side.
Identification of a BATNA serves several functions. First, it helps your client decide whether to
negotiate. If, for example, your rights-based BATNA is very strong and the client has little
interest in any compromise, trial may be better than negotiating.
Second, a BATNA sets a standard by which to measure settlement proposals. If the client's BATNA
is a very strong legal case which she is willing and financially able to pursue, she will probably
reject an offer that does not address most of her interests adequately. If, on the other hand, the
BATNA is a difficult defense of a lawsuit, the adjudication of which will strain the client's
limited finances, she will be more likely to accept that very same offer.
Finally, the process of identifying a BATNA helps you select the most effective overall approach
to the negotiation.
DETERMINING THE OTHER PARTY'S BATNA
After identifying your client's BArnA, go further and try to predict the other side's BATNA.
Reviewing the assessment of the other party's interests, rights, and power, you and your
client should imagine the other side's alternatives to negotiation. Then, weighing these
options in light of their imagined priority interests, try to identify the one or two that would
best accomplish the other side's goals. By comparing your client's BATNA with the other
side's BATNA, you get a good sense of the settlement range and the probability of achieving a
negotiated agreement.
22.3 SELECTING AN APPROACH TO THE NEGOTIATION
As you know by now, a lawyer using an adversarial approach to negotiation views what is
happening as a conflict over distribution of limited resources and tries to persuade the other
side to concede that the adversarial lawyer's client is entitled to the maximum gain. A lawyer
using a problem-solving approach tries to integrate the resources of each side to reach a
settlement or deal and works with the other party to develop mutual agreements. Often a lawyer
will use both types of approaches in the same negotiation . In preparation for a negotiation,
determine the most effective approach or approaches for the situation in which you find yourself.
Most of what you do and say while negotiating will depend on the approach you have selected.
The approach you take will depend, in large part, on the kind of authority the client has given
you and the BATNA she has identified. Many proponents of problem-solving negotiation assert
that almost all transactions and disputes are not zero-sum games, and they argue for the use
of such an approach in most negotiations. Although this might be admirable theory, it ignores
the fact that the client has the ultimate authority to accept or reject a proposal. Thus, even if
the most efficient and reasonable solution to a child custody dispute might be a joint custody
agreement, if your client insists on sole custody, a problem-solving approach to negotiation will
probably not be useful in addressing her interests. You, of course, can counsel your client as to
the benefits of a joint custody arrangement and warn her of the disadvantages of relying on a
court proceeding as her BATNA, but the client does have the final say-and,
in the end,
might be right for her needs, even if we would rather she chose otherwise.
In determining the approach to take, consider the following factors:
1. Integrative versus distributiue aspects of the transaction or dispute. While a problem-solving
approach works better when there is good potential for joint gain, an adversarial approach
works better when distributive issues predominate. To choose between them) consider the

"Highest Priorities" section of your interests assessments chart (Chart 21A) and determine
whether any viable solutions are suggested by these priorities that would be mutually
acceptable to both parties. In a negotiation for the commercial sale of goods, for example, if the
parties care about price more than anything else, an adversarial approach probably will protect
each party's interests better because distributive issues predominate. But in a negotiation to
create a joint venture, many common interests may exist that allow for a problem-solving
approach; the joint venture will fail if the parties do not develop a sound relationship.
2. Relationship interests versus Due-shot deal. If your interests assessment reflects important
relationship interests between the parties, a problem-solving ap proach may be strongly
warranted because positional bargaining can be highly disruptive to relationships. In
situations where an ongoing relationship exists between the parties-for example, labor and
management, tenant and landlord, spouses, merchants who engage in frequent transactions-an
adversarial approach has the potential for adversely affecting that relationship. "Even if you win
the battle, you may lose the war. In the process you may destroy your relationship with the other
side. And they will often find a way to renege or retaliate the next time they are in a position of
power,":' In contrast, if the dispute or transaction is a "one-shot" deal with a party with whom
your client has little or no relation ship-and
anticipates none in the future-the
interest of
maintaining the relation ship does not predominate and the problem-solving approach is not so
strongly indicated. You might, of course, still want to use a problem-solving approach for other
reasons-for example, if your client wants to minimize the costs of litigating a dispute.
3. Impact of psychological and reputational interests. In some negotiations, if your client's
psychological or reputational interests matter most, they will dictate the approach you take in
bargaining. If, for example, your client is deathly afraid of going to trial under any
circumstances, you may opt for a problem-solving approach even if you believe you can
achieve the maximum gain for your client using adversarial methods. Or, if in an action alleging a
Clean Air Act violation, in which you represent a defendant company that believes the plaintiffs are
unfairly attacking its environmental record and that wants to vindicate its reputation, you may
choose an adversarial approach even if your evaluation of the different interests suggests
possible integrative solutions.
4. Strength 01 urealsnessesof tb~ rights-based or power-based BAlNA's. Your approach to
negotiation may be significantly affected by the strength or weakness of your rights-based or
power-based BATNA's. On one hand, if your client has a strong legal claim or power resources
that could coerce the other side into submission, an adversarial approach may be warranted.
Unless your client can realize maximum gain from the negotiation, she probably should resort
to her BATNA. On the other hand, if her legal claims are more tenuous and you are litigating
before a hostile judge or agency or the power balance tips in your opponent's favor, a
problem-solving approach may be advisable.
5. Importance of a definitive ruling, In some disputes one or both of the parties might need a
definitive ruling on a particular legal issue. In certain constitutional, civil rights, environmental,
or other "public interest" litigation, the plaintiff may have a strong interest in attaining a clear
vindication of its rights either through a ruling from the court or agency or through a consent
decree or other agreement under which the defendant acknowledges some liability. In such cases,
even though a problem-solving approach might efficiently resolve the dispute, the plaintiff's
4. Ury, supra note 1, at 132 ("[as] the great Chinese strategist Sun Tzu wrote, UTa win one
hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without

fighting is the acme of skill"). lawyer may want to adopt an adversarial approach to achieve the
maximum gain in the negotiation: an admission of wrongdoing by the defendant. Consider three
cautions about these factors. First, they are merely guidelines to suggest ways of selecting your
approach to negotiation; they are not mechanical rules. In some cases, for example, where your
client wants a definitive ruling, you may select a problem-solving approach because other
overriding client inter ests, such as maintaining a good relationship with the other side, suggest
that an adversarial approach is not warranted. Second, in some if not most cases, different issues
in the negotiation will be more amenable to one approach than to another. Third, you may find
that your initial approach simply does not work with the other side. Be prepared to adapt your
strategy to the negotiation behavior of the other party.
22.4 CRAFTING A PLAN: ADVERSARIAL APPROACH
In a negotiation in which you have chosen to take an adversarial approach, or for those issues
in a particular negotiation for which you have selected that approach, your goal is to
maximize your client's gain and minimize your client's loss. To accomplish this goal, you engage
in an exchange of offers and counter offers with the other side until you either reach an impasse
or agreement. Evaluating interests, rights, and power in terms of the parties' respective
bargaining ranges will also help you develop arguments, threats, warnings, and appeals to
convince the other side to make concessions. In order to elicit conces sions from the other side, you
must demonstrate that your offer is better than its BArnA. The process of estimating these
ranges helps you to develop ways of causing the other side to make concessions and to know
when you should make concessions
22.5 CRAFTING A PLAN:
PROBLEM~SOLVINGAPPROACH
To take a problem-solving approach, your goal is to find solutions that will integrate the resources
of both sides or to increase the resources available so that a mutually agreeable solution is more
likely. You and your client should consider the priorities of each party's interests (Chart 21A)
and explore any possible solutions suggested by these priorities. Unlike the adversarial
approach, where you concentrate on maximizing the interests of your client and consider the
most obvious distributive options, here you try to broaden the number of options for
settlement beyond obvious issues of dividing a fixed pie.
In a personal injury case, for instance, the plaintiff may need money for medical and
rehabilitation expenses in the future, and the uninsured defendant may need to limit his shortterm expenditures. With an adversarial approach, the parties simply try to reach an agreement as
to the amount of the plaintiff's recovery. Under a problem-solving approach, the parties might
agree on a structured settle ment, paid overtime, that might meet the needs of both parties. Or in a
commercial leasing transaction where the property needs a major renovation, the landlord is
strapped for cash, and the potential tenant is worried about whether a profit can be made within
the first year, a potential solution might be a reduced rent for the first year, in exchange for
which the tenant will repair the property.
To plan for a problem-solving negotiation, think of ways to expand the range of options.
Encourage your client to break out of the tendency to view the issues as a simple distributive
problem. Ask the client to help you brainstorm other solutions. For example, in representing
the buyer in a negotiation for the sale of a house, ask her, "If the seller won't decrease the price, is
there anything else he can do that would make you willing to pay that amount?" Another
way of increasing the range of options is to enlist the assistance of an expert. Accountants and

other financial consultants, for example, can be helpful in devising methods for organizing a
settlement or transaction to meet the interests of both parties.
In developing different solutions, look beyond the resources of the parties and ask yourself
whether there are ways of creating resources elsewhere. One commentator tells the story, for
example, of a large antitrust case against drug manufacturers
in which a subgroup of
plaintiff drug wholesalers and retailers rejected as inadequate the $3 million allocated to them
of the $100 million total settlement. Because of time and other logistic constraints, the
settlement terms could not be modified, and it appeared that the deal was a failure. The
parties developed a solution, however, under which the drug manufacturers placed a large
portion of the total settlement in a bank account for one year in trust for the plaintiffs. After
that year, the trust account accrued interest, and the protesting drug wholesalers and retailers were
able to take a larger award. The bank provided the mechanism for augmenting the resources
available to the parties." By considering expansion of resources, the negotiation becomes less of
a zero-sum game.
22.6 INFORMATION GATHERING, DISCLOSING, AND CONCEALING
Whether you are planning an adversarial approach, a problem-solving approach, or a
combination of the two, you need to prepare for "information bargaining." A negotiation
involves not only an exchange of offers and counteroffers or brain storming of possible
solutions, but also attempts by each party to learn more information from the other. With
this information, each party can readjust its concession strategy in adversarial bargaining
or its brainstorming approach in problem-solving negotiation. To prepare, identify: (1)
information you want to obtain from the other party so you can understand their bargaining
stance; (2) information you want to disclose voluntarily to the other party to facilitate your
overall plan; and (3) information you want to conceal that might weaken your negotiation
posture. The next few pages explain how to identify information in each of these categories.
Cha pter 23 describes techniques to use during the negotia tion to elicit or conceal this
information.
1. Gathering iufomlation. Remember that the negotiation process itself is by no means the
only vehicle for gathering information about the other side's position or interests in the dispute
or transaction. Significant information can be obtained through your client, third parties,
library research, public records, and, in the dispute context, formal discovery. In a
negotiation for a sale of a business, for example, if the seller had previously engaged in
failed negotiations with another potential buyer, that party might be an important source of
information for the new buyer about the seller's "bottom line." Likewise, in a medical
malpractice suit, the defendant's lawyer may be able to discover much more about the plaintiff's
interests in the case at a deposition than might be learned during settlement talks. In other
words, before relying on the bargaining process as a means to gather information, try to
develop other sources of proof.
In adversariaI negotiations, the most important information you need is the other party's
bottom line. For that very reason, most opponents will not disclose that information. Your
goal, then, is to gather as much circumstantial evidence as possible about the other party's
assessment of the transaction or dispute so that you can better estimate its bottom line. Start
with your interests assessment of the case and identify what particular interests of the other
party might affect its determination of a bargaining range. You might want to explore, for
example, the other side's psychological or reputational interests in a lawsuit or its concerns about
the transaction costs of the case.

Then, examining your rights assessment of the case, identify both the issues about which your
position is strong and the ones in which your position is weak. By obtaining information about
the other side's views on these issues, you will learn whether or not its assessment coincides
with yours and how it evaluates the merits of its position.
Finally, in regard to your power assessment of the case, consider the types of potential
power the other side might wield and how the likelihood of the exercise of that power
would affect that party's bottom line. In most cases, you obviously do not want to ask the
other side directly if it will exercise a particular form of power if bargaining fails. But if the
other side threatens the exercise of that power, you probably will want to gather information
to determine whether it is bluffing or is serious.
In problem-solving bargaining, the types of information you want to obtain flow from your
interests assessment of the case. Consider the priority interests you have predicted for the
other side that lead to the integrative solutions you have brainstormed. In the negotiations,
you will want to gather information to confirm whether or not those forecasts are correct.
In the group home case, for instance, the students predicted that one of the city's interests
would be to avert the risks of a Fair Housing Act enforcement proceeding and
brainstormed a possible solution to meet that interest (that the city help Cassini find a
new location for her facilities). In the negotiation process, the students would want to
explore whether the city in fact was so worried that it would help Cassini relocate.
2. Disclosing information. The process of identifying information that you should disclose
during the negotiation requires an analysis converse to the one you used in regard to the
information you want to gather from the other side. Thus, in an adversarial negotiation,
you want to disclose information that will apprise the other side of facts showing a strong
bottom line for your client: that your client's interests support few concessions in
bargaining, that your legal and factual theories are convincing, and that you will use power
alternatives if negotiations faiL And, in problem-solving negotiations, you will want to
reveal information about your client's interests that will facilitate a solution that will
integrate both parties' concerns. In either case, however, your disclosure must be limited by
tactical considerations (it must be credible or it will not persuade) and ethical constraints (it
must be permitted by the rules of professional responsibility.
3. Concealing information. Although many lawyers consider the concealment of damaging
information an absolute rule of negotiation, it is better to think of the issue as a tactical one.
Initially, consider whether the other side has-or will have-access to the information. If the
other side will learn it from other sources anyway, it might be useless to hide it. Second,
examine whether candid acknowl edgment of damaging facts may have the potential to
increase the strength of your negotiating positions. In a negotiation for the sale of a house,
for example, consider the impact on the buyer if the seller's lawyer admits, "I know that the
ceiling in the upstairs bedroom had some water damage a few years ago, but it was fixed,
and there hasn't been a problem since then." Finally, analyze whether the disclosure will facilitate
the negotiation. Especially in problem-solving bargaining, your openness as to the interests of
your client-even if you disclose some weak ness of your client-might
encourage a similar
response from the other side. If, however, the damaging information
is not easily
accessible and its disclosure serves no tactical purpose, consider ethically acceptable means
of concealing it .
22.8 ADAPTING YOUR STRATEGY
The strategy that you initially develop should not be set in stone. As bargaining proceeds, the

interests, rights, and power context of the negotiation may change; your client may modify her
BATNA; speculation about the responses of the other party may simply be wrong; the
information you gather during the negotiation may significantly affect your client's and your
own perception of the situation; and the overall approach you have selected for the
negotiation (adversarial or problem-solving) may turn out to be ineffective. Despite your
valiant efforts to use a problem-solving approach to negotiation, for example, the other side
might simply ignore your entreaties and bulldoze ahead with an adversarial approach. On the
other hand, you may find that adversarial bargaining by both sides has worn both parties down
to such a small bargaining range that a problem-solving approach helps to obtain a final
agreement. "Competitive tactics early in the negotiation, perhaps ironically, sometimes
increase the prospects for successful use of ... problem solving tactics later in the negotiation.
Accordingly, throughout the negotiation process, reevaluate your initial strat egy and be open to
adapting it to any changed circumstances. The analysis will be the same as the one you used in
your initial planning: go back to your assessment of the parties' interests, rights, and power
(Charts 21A, 21B, 21C, and 21D), have your client fine tune her BATNA, consider what
additional information might be helpful, and reexamine the approach you have selected for
addressing the different issues.
23.1 CREATING NEGOTIATING STYLES
In conducting any negotiation, you should select for yourself a negotiating style that will work
well in the circumstances. You should also recognize any issues raised by cultural differences
between you and the other side.
23.1.1 SELECTING A STYLE FOR A PARTICULAR NEGOTIATION
As you have learned, negotiating, like most other lawyering skills, requires the ability to
communicate. You may have developed the most creative and clever strategy possible, but you
will fail unless you can communicate effectively with the other side. Your style is an important
aspect of this ability to communicate. Style is the manner in which you personally relate to the
other side-for example, your word choice, tone of voice, body language, and eye contact.
Strategy is the overall approach you have chosen to achieve your client's goals-adversarial,
problem-solving, or both. Style is the personal manner in which you execute this strategy:
how you present your proposals, listen to the other side's proposals, and respond. Obviously,
this distinction is a bit artificial (often your tone will reflect your strategy). But the distinction
helps in understand ing the conduct of a negotiation. Strategy is the content of your presentation
to the other side (what you say). Style is the way you package this presentation (how you say it).
Just as you select a strategy for a particular negotiation, you also select a style (or styles).
We do not suggest that you try to become someone who you are not. How you negotiate-as well as
how you examine a witness, counsel a client, or argue to a judge-will grow out of who you are. You
can change your negotiation style or modify it to meet the needs of a particular situation, but to some
degree the ways you negotiate or try a case will be determined by your personality. If you are
naturally abrasive and aggressive, for example, it will be difficult, if not impossible, for you to come
across as a Milquetoast.
But you cannot ignore the fact that the style you use in your communications with your adversary
may have an important effect on its outcome. Part of becom ing an effective lawyer is learning how
to act. As you become more experienced, try to develop a repertoire of negotiating masks that grow
out of your personality but also communicate effectivelyin the particular situation. Indeed, this

approach is applicable to all aspects of the lawyering process. Consider, for example, the crossexamination of witnesses in an assault case. The defense lawyer might very well wear a very
different mask in her questioning of the eighty-year-old grandmother who allegedlywitnessedthe
incident and the detective who obtained the confession from her client.
Two categories of negotiating style are combative and cordial. While a combative style is tough,
dominating, forceful, aggressive,and attacking, a cordial style is personable, friendly,and tactful.'
Obviously,there is a broad continuum between these two styles. And in any given negotiation, a
lawyer might switch from one to another style depending upon the impact the lawyer wants to make
on the other side. Moreover, since style depends in large part on the perception of the listener, the
precise attributes of a particular style will depend significantly on the culture in which the
negotiation is taking place. That perception might vary from one region of the country to

Introduction
As introduced in the preceding chapter, the existing academic literature about the negotiating
process has given rise to two distinct models of negotiating that are particularly helpful in
understanding what negotiators do and what they ought to do. These descriptive and prescriptive
models are useful frameworks for bridging the gap between theory and practice in that they
provide a conceptual overview of the negotiating process that is eminently practical in deciding
what overall negotiating approach to use in particular circumstances.
The Adversarial Model
The adversarial model of negotiation (sometimes called "competitive," "zero sum," "individualistic,"
or "distributive bargaining") is the most commonly used approach to legal negotiations. It
focuses on "winning" in the sense of maximizing the likelihood the client will prevail and
what the client receives upon prevailing. Each side strives to get as much of the thing
bargained for (usually money),' and the more one side gets, the less the other side gets.
Adversarial negotiators engage in a largely competitive and manipulative process in which
a series
of concessions is made
from initial,
polarized positions to arrive
at a
compromise point which is perceived to be either roughly equivalent to what a court would
award or more desirable than taking the risk of what might happen in court.
Adversarial negotiation
usually
involves five stages.
First, each party prepares for the
negotiation by establishing her "target" and "resistance" points, and estimating the target
and resistance points of the other side. A "target point" is the best result a party
realistically expects and can obtain, and its "resistance point" is the point below which he
will not make any further concessions and will resort to her best alternative to negotiation
such as going to trial. From these target and resistance points, the parties plan their first
offers (which are set somewhere beyond their target points), and establish their concession
patterns in light of the ultimate "settlement zone" created by the overlap between the
parties' resistance points.
In the second stage, the parties define the issues and often make their first offers or proposals.
Third, the parties exchange information in the course of presenting their varying positions and

arguments in support of those positions. Fourth, they bargain toward compromise by analyzing
and making concessions. And fifth, the parties conclude the negotiation by executing settlement
documents or releases if an agreement has been reached, or, info agreement can be reached, by
resorting to their best alternative to negotiation such as going to trial:
The adversarial model is based on four assumptions. First, the model assumes that the parties desire
the same goals, items, or values (e.g., money). Second, the model assumes that the parties are in
conflict because they are bargaining over the same "scarce" goals, items, or values. Third, it is
assumed that the matters to be bargained for are limited to those that a court would award, whether
money or something that the law may compel a party to do or not to do. Finally, the model assumes
that the best solution is predicated upon a division of and compromise over the goals, items, or
values at issue.
The adversarial paradigm is based almost exclusively on the simple negotiation over what appears to
be one issue, such as price in a buy sell transaction, or money damages in a personal injury or breach
of contract suit. The common assumption in these cases is that the buyer wants the lowest price, the
seller the highest; the plaintiff wants the money demanded in the complaint and the defendant wants
to resist paying as much as possible. Each dollar to the plaintiffs a commensurate loss to the
defendant; the same is true with the buyer and seller. Given this description of the paradigmatic
negotiation, the negotiator's goal is simply to maximize gain by winning a much of the material of
the negotiation as possible. Underlying this general assumption are really two assumptions: first, that
there is only one issue, price; and second, that both parties desire equally and exclusively the thing
by which that issue is measured, in most cases, money.
:..
Critics of the adversarial model contend that its underlying assumptions and method of negotiating
often limit the quality of the solution to the parties' problem or dispute. By assuming that the parties
desire-the same goals, items, or values (such as money) and therefore are limited to 'bargaining
over the same scarce resource, the parties may overlook the fact that they really value of these
goals or items unequally or have completely different goals in mind. When these differences are
not taken into account, the parties may fail to consider alternative solutions, such as trading a
smaller sum of money for the performance of an act or service by the other side. Moreover, by
assuming that the matters to be bargained for are limited to those that a court would award, the
parties often limit their solutions to purely "legal" ones without considering extra-judicial
alternatives that may better satisfy both parties' goals, values. or needs.
For example, if a former husband and wife are in dispute about an appropriate increase in the
amount of alimony the wife should receive, and the wife contends she needs $300 more per
month than the husband says he is able to afford without straining his cash-flow situation, a strict
application of the adversarial model may result in the parties splitting the difference at $150
more a month or some other amount they think a court might award. However, if the wife's
underlying need for the additional $300 is to allow her to make payments on a new car over a twoyear period, and the former husband is the owner of a car dealership, he may be able to give
her a car from his inventory in exchange for the wife's agreement to forego a $300 increase in
monthly support payments. In this way, the wife receives the item that is of greater value to her (the
immediate use of a dependable car), and the husband obtains the goal that is most important to him
(preserving his future cash-flow situation).
Critics of the adversarial model also contend that the process by which adversarial
negotiations are conducted tends to undermine the quality of potential solutions in two ways. First
the process of exchanging offers, counter offers, and concessions may not be helpful when the
parties are faced with multiple issues. Second, the competitive nature of adversarial negotiation

tends to result in argumentation, manipulation, and deception that may inhibit creativity in
finding solutions, leave the parties resentful even if an agreement is reached, and impair their
future relationship.

The Problem-Solving Model

The problem-solving model of negotiation (sometimes called "cooperative,"
"accommodative,""collaborative," or "integrative bargaining") focuses on identifying
the parties' underlying interests or needs to develop a broad range of potential solutions
from which an agreement can be fashioned that satisfies as many of the parties' mutual
needs as possible. Unlike the adversarial model, which emphasizes maximizing
individual gain at the expense of the other side, problem solving emphasizes
maximizing the parties' joint gain. Problem-solving negotiators engage in a largely
cooperative and collaborative process that strives to create a mutually satisfactory
solution that is not necessarily limited to traditional judicial remedies.
The problem-solving model is based on four assumptions. First, the model assumes that
the usual objective of obtaining money damages is actually a proxy for more basic
interests or needs apart from merely those things that money can buy. Second, the
model assumes that the parties' interests or needs are often not mutually exclusive. Third,
it assumes that by identifying the parties' underlying interests or needs, the parties can
come up with a greater number of possible solutions. And four, the model assumes that
by exploring a greater number of possible solutions, the parties are more likely to
find a solution that mutually satisfies their interests or needs.
The problem-solving model is usually applied in five stages of so-called "principled
negotiation." First, the parties plan for the negotiation by identifying each side's
underlying interests or needs. These interests, which essentially constitute the underlying
reasons for the parties' objectives or goals, are identified in light of the financial situation
of the parties, their social and psychological needs, their moral perspectives, and the legal
issues in the case. Second, the parties make a conscientious effort to "separate the people
from the problem"-a mindset that attacks the problem, not each other. Instead of focusing
on stated "positions," they discuss and share information about each other's interests
or needs to see where they are shared or in conflict.
Third, the parties engage in a "brainstorming" session to generate as many solutions as
possible that may satisfy the interests or needs of both parties. Fourth, the parties
choose the most reasoned
solution
that
maximizes their mutual
gain.
Concessions might be made by trading off different interests or needs, and,
where interests
conflict, the parties
strive to resolve their differences
based on some objective standard (such as market values, expert opinions,
customs, industry standards, or the law) which is independent of the naked will
of either side. Finally, the parties conclude the negotiation by executing settlement
documents or releases if an agreement is reached, or, if no agreement can be
reached, by resorting to their "best alternative to a negotiated agreement"
(BATNA) such as going to trial.
Even the strongest proponents of the problem-solving approach acknowledge its
limitations. As summarized by one 'scholar: Several difficulties may confront the
'skeptical problem solver. First there is the problem of perceiving resources as
finite. In some legal disputes, for example, a case involving a simple transfer of
limited dollars or other valued items from one side to the other, it-may appear
impossible to expand what is available to both parties. A second barrier may be
the perceived inequality of power-between the negotiating parties. If one side has power
in the legal, economic 'or psychological sense during the negotiation, the weaker
party may have insufficient leverage to use problem-solving techniques where the
stronger party knows it can gain a great deal by exercising power in a conventional
negotiation. Third, an attempt to satisfy needs may itself thwart the problem-solving

approach in a situation where, for example, one of the parties has a need for
revenge or punishment: Fourth, there may be limited psychological resources.
Where one of the parties is used to a competitive style of negotiation, the execution
of a problemsolving method may be viewed as impossible unless the other party
becomes a problem solver. Finally, a problem-solving model based on a theory of
needs has its own limitations. It will not solve all negotiation dilemmas, but it still
offers a potentially more systematic and effective way of thinking about negotiation,
Many negotiations involve neither a purely adversarial nor a purely problemsolving approach. Thus, negotiators frequently use more than one of these approaches in
a single negotiation. For example, the parties might start with an adversarial approach
and the remove to a problem-solving one, or they may apply different approaches to
distinct issues in the case. While it sometimes may be psychologically difficult to shift
between approaches, particularly when a highly competitive adversarial approach is
taken at the outset and the parties then try to engage in problem solving after egos
have been frayed or hurt, the willingness to be flexible in shifting one's approach often
makes the difference between reaching and not reaching a satisfactory agreement.
In deciding which negotiating model may be most effective in a particular case, the
following factors should be considered:
The nature of the parties in dispute or problem often has a significant impact on the
relative effectiveness of the adversarial or problem-solving approach. For example, the
adversarial model may be better suited when the parties are bargaining solely over a fixed
and finite matter such as money. If the only issue is how much one party will pay the
other, and the gain to 'one party will necessarily be at the expense of the other, this
"zero-sum" controversy rarely provides an opportunity or incentive for the parties to
collaborate in expanding the resources they might divide or trade to their mutual gain.
Thus, if the only issue between a buyer and seller is the price of a single item, or the
only issue between the plaintiff and the defendant is the amount of property damage,
the adversarial model is likely to be more appropriate.
On the other hand, the problem-solving model may be more useful to the extent the
nature of the dispute or problem does not have zero-sum aspects. This is particularly
true if the parties are negotiating over multiple issues that they value differently. For
example, if the parties are in dispute over the issues of child custody, visitation, and
support, it is more likely that a problem solving approach will produce a more mutually
satisfactory solution if the parties consider options such as joint or split custody, and
how various visitation arrangements may affect appropriate amounts of child support.
Similarly, if the issue between a buyer and seller is not merely price, but involves
considerations such as quantity, time of delivery, and manner of payment, the
problem-solving approach may be more productive in reaching an agreement addressing
these multiple elements. In practice, problem solving is used more frequently in
domestic relations, business regulation, and government action cases.
The Other Side's Negotiating Approach
A party's negotiating approach will often be affected by the particular approach taken by
the other side. For example, if the other side is unwilling to engage in a problem-solving
approach, attempts to 'employ that model will be largely ineffective because the model
presupposes information sharing and collaboration between the parties. This does not
mean that a problem-solving negotiator should not try to encourage the other side to use a
problem-solving approach. However, if the effort is unsuccessful, it is unlikely the
problem solver will be able to make any headway in the negotiation unless he is willing

to accommodate the other side's adversarial bargaining.

Sometimes the other side's negotiating approach conforms to some generally accepted
convention or norm that is endemic to a particular geographical area or type of case. In
simple personal injury cases, for example, most lawyers and insurance adjusters
routinely engage in adversarial bargaining; and plaintiffs' lawyers who enter into
contingency fee arrangements, whereby their fee is a percentage of the monetary amount
received in settlement or at trial, may be less motivated to engage in problem solving if
that approach would produce a settlement that is not exclusively resolved by the payment
of money.
In addition, the parties may be reluctant to share their true needs or interests upon
which expanded options for a resolution might be explored. For example, a party might
be psychologically or financially distressed as a result of the dispute and not want to
reveal these matters out of embarrassment or fear of demonstrating weakness. Similarly,
particularly when litigation is contemplated or has already commenced, a party might
not want to reveal certain information to give "free discovery" to the other side. In either
of these circumstances, the parties maybe more likely to resort to adversarial bargaining
than problem solving.
Negotiating leverage stems from the perception of the negative consequences that a
party can inflict on his opponent if an agreement is not reached, or from the benefits
that a party can bestow on the other if an agreement is reached. The extent of this
leverage is largely dependent upon the alternatives available to each party in the absence
of an agreement. Generally, the side that possesses the most viable alternative in the
event that an agreement is not reached will have greater power over the other side.
A negotiator who possesses greater bargaining leverage over his opponent may adopt an
adversarial approach on the theory that his threats will be perceived as more
credible and he will thus be able to extract greater concessions from his opponent.
Conversely, the power will often choose the problem-solving model to offset or neutralize
the adversarial bargainer's emphasis on a purely concession-based settlement. In essence;
the lower-power negotiator will attempt to appeal to the more powerful negotiator's
sense of fairness and justice to counteract the latter's. tendency to believe that his
bargaining position is superior arid that any concessions on his part are unwarranted.
When both negotiators have high aspiration levels and possess relatively equal
bargaining leverage, rigid adherence to the adversarial model may often result in
deadlock. Deadlock may motivate the parties to abandon an adversarial approach and
adopt a problem-solving approach.
Future Dealings between the Parties or Negotiators
The extent to which the parties or their negotiators are likely to have an ongoing
relationship after the negotiation often affects the incentive for adopting an
adversarial or problem-solving approach. The adversarial model sometimes gives rise to
distrust and ill will, and thus the problem-solving approach is more frequently used
when the parties or their representatives expect to have future dealings with one
another. On the other hand, if the parties or their negotiators are merely engaged in a
one-shot transaction or encounter, there will be less incentive to avoid the adversarial
model with its concomitant risk of impairing future relations.
Pressures to Reach an Agreement
The pressures placed on the parties to reach an agreement may affect their choice of
negotiating approach. For example, a party might want to settle quickly because she

needs the settlement proceeds immediately, desires to limit legal fees or other
expenses, or wants to avoid the psychological stress of protracted controversy. Similarly,
court deadlines or heavy caseloads may pressure the negotiators to expedite an
agreement.
Generally, the problem-solving model's emphasis on sharing information to identify the
interests or needs of the parties and brainstorming to develop possible solutions is more
time consuming than the offer-counteroffer and response-counter-response method of
adversarial negotiation. Thus, the greater the time pressure placed on the parties, the
more likely they are to resort to adversarial bargaining through the swifter device
of reciprocal concessions
8.05 Negotiating Strategies and Styles
In practice, negotiating strategy is simply the conceptual model or approach chosen in
conducting the negotiation-whether adversarial, problem solving, or some combination
of the two. Negotiating style, on the other hand, refers to the negotiator's interpersonal
behaviour in the negotiating setting, and often will be affected by the particular strategy
chosen. Generally, there are three types of negotiating styles:
(1) competitive(hardball),
(2) cooperative(softball), or
(3) a combination of competitive and cooperative<hardball and softball).
Each has its advantages and disadvantages that should be assessed in choosing an
appropriate style.
8.06 Competitive (Hardball) Style
The competitive style is typically characterized by aggressiveness and a confrontational
approach. Winning is everything, and personal feelings and interpersonal relationships
are viewed as essentially irrelevant. Threats, intimidation, and Machiavellian tactics are
sometimes employed.
The advantage of this style is that it tends to pressure the adversary into making
concessions, particularly when he is easily intimidated or inexperienced and extreme
demands and hard-nosed positions may sometimes give rise to larger settlements. In
addition, the competitive negotiator develops a reputation of strength and toughness that
is attractive to many clients. On the other hand, a competitive style frequently alienates
the other side and produces mistrust, misunderstanding, and more frequent deadlocks. It
often polarizes positions and causes overreaction. Personal relationships may be impaired
or destroyed, thus making future negotiations with the same party or negotiator more
difficult.
The competitive style may be effective when dealing with an inexperienced negotiator or
where the parties and their representatives are involved in a one-time adversarial
relationship. On the other hand, if the parties intend to have an ongoing relationship, the
competitive style is undesirable because of its propensity to cause mistrust and alienation.
For example, this style is generally not well suited for business negotiations.
The negotiator who adopts a highly competitive style can minimize its negative
effects by focusing on the subject matter of the negotiation rather than
on
personalities, and after an agreement is reached, by initiating an effort to repair any
damage that has been caused to personal relationships.
8.07 Cooperative (Softball) Style
The cooperative style is the antithesis of the competitive style. The cooperative negotiator
places a premium on interpersonal relations, and strives for common ground, shared
interests, and understanding between the parties. The style is typically sincere,
accommodating, and low key. While it should not be confused with weakness, it often

conveys that image.

The advantage of this style is that it tends to reduce the risk of deadlock and produces
faster and more long-lasting agreements. In addition, the parties usually come away from
the negotiation with their egos intact and a disposition to continue their relationship in the
future. The disadvantage is that the, I cooperative negotiator may have a tendency to
avoid confrontation and make too many concessions. Sometimes a more favourable
agreement is forsaken for the mere goal of reaching an agreement.
The effectiveness of a cooperative style depends upon the willingness of both sides to
forthrightly exchange information. If the cooperative negotiator is pitted against a
competitive opponent, the latter may gain an unfair advantage by obtaining
information from the former without reciprocating. In addition, the competitive
bargainer may misinterpret the cooperative style as a sign of weakness and escalate her
aggressiveness. Thus, the cooperative negotiator should also understand competitive
tactics so that she can offset them in appropriate circumstances.
8.08 Competitive-Cooperative (Hardball and Softball) Style
The competitive-cooperative style represents a middle ground between hardball and
softball. Here, many of the advantages of the competitive and cooperative approaches are
combined in a style that is professionally amicable, open-minded, but firm. Under this
approach, realistic concessions are made to satisfy the objectives of both parties that
are consistent or not mutually exclusive. Conflicting objectives are resolved by
compromise or by some creative solution that maximizes as many of the parties'
remaining objectives as possible.
The advantage of this style is that it preserves personal relationships and facilitates longterm agreements. The disadvantage is that the approach is largely unworkable un1essboth
sides are genuinely willing to "work together" to resolve their differences-an attitude
that may be inherently difficult to adopt in the face of a heated dispute. In addition, the
approach requires more time and patience. The competitive-cooperative approach is
usually a waste off time if the other side is unrelentingly competitive. However, this
approach may be successful if the competitive negotiator has a weak position.
8.09 Choosing a Negotiating Style and Strategy
The particular negotiating style and strategy you adopt will depend upon your own
personality, the nature of the dispute, the style and strategy employed by the other
side, and the client's interests and objectives which you have identified in preparing
for the negotiation. In choosing an effective style and strategy, it is important to bear
in mind that
(1) no particular combination of style and strategy is always more effective;
(2) you should, consider being flexible in' your choice of style and strategy
throughout the negotiation process; and
(3) your choice of style and strategy should always have everything to do with your
client's interests in mind and nothing to do with your own ego.
Understanding the differences among negotiating styles and between negotiating
strategies is highly useful in choosing a particular style and strategy. In addition,
understanding how different styles and strategies tend to operate together is useful in
choosing an effective combination for a particular case.
8.10 Style and Strategy Combinations?
Competitive and Adversarial
When a competitive (hardball) style is combined with an adversarial strategy, the
negotiation is usually characterized by hard, intense bargaining. The positions of the
parties are likely to be extreme at the outset and remain fairly rigid throughout the

negotiation. Concessionaire hard to come by, and bluffs, threats, and even ad hominem
attacks may permeate the process. Deadlocks are frequent, and, even if the parties
reach agreement, they sometimes leave the negotiation dissatisfied and with their
personal relation ship impaired or destroyed.
IMPORTANCE OF FLEXIBILITY AND CREDIDILITY
Cooperative (or Competitive - Cooperative) and Adversarial
When a cooperative (softball) or competitive-cooperative (hardball & soft- ball) style is
combined with an adversarial strategy, the prospects of reaching an agreement are
enhanced. The negotiation is typically cordial and characterized by a reasoned debate
about the various offers and counteroffers presented. Concessions made gradually are "in
the spirit of compromise."Bluffs and threats may occur from time to time, but not in the
sometimes-acerbic manner employed by purely hardball negotiators. If a settlement is
reached, it might include the performance of obligations other than the mere payment
of money, and the parties usually will conclude the negotiation with their
relationship and egos intact.
Competitive and Problem-Solving
A competitive (hardball) style is largely antithetical to a problem-solving strategy. While
the competitive problem solver will participate in identifying the needs of the opposing
party, he is likely to be less than completely candid about those needs and seek to
de-emphasize them in favour of feigning or inflating the needs of his own client. In
addition, the competitive bargainer is likely to advance solutions that solely benefit his
side, rather than entertain broader solutions that accommodate the interests of the other
side. In short, the competitive negotiator is primarily motivated to explore mutually
beneficial solutions only to the extent they maximize his own client's interests.
Cooperative (or Competitive-Cooperative) and Problem-Solving
A cooperative (softball)or competitive-cooperative(hardball & softball) style best
complements, a problem-solving strategy. The cooperative negotiator genuinely seeks to
identify the legitimate interests of both -parties, and is willing to explore mutually
beneficial solutions in an open-minded manner. A premium is usually placed on the
candid exchange of information. The hallmark of the cooperative problem-salver's style
is to emphasize common ground and minimize the parties' differences. Generally, when
a cooperative style is combined with a problem-solving strategy, the prospects for
reaching a mutually satisfactory agreement are at their greatest.
The Overall Importance of Flexibility and Credibility
Regardless of the negotiating style and strategy you choose for a particular case, you
should always be flexible in switching or modifying that style or strategy in appropriate
circumstances. It is not unusual for a negotiator to use more than one style or strategy in a
single negotiation session or during different stages of protracted settlement discussions.
In short, if it becomes clear that a particular strategy or style is counterproductive,
it may be beneficial to make an adjustment .
.Along with flexibility, your choice of style and strategy must be credible. Persuasion
depends largely upon believability. If your style or strategy is strained or
disingenuous, it is unlikely you will be effective in successfully negotiating the case. A
common mistake made by inexperienced negotiators is adopting a style or strategy that
is at odds with their own personality. If credibility depends upon using a particular
style or strategy that you are uncomfortable with, ask a colleague who is more skilled
in using that style or strategyto join you in the negotiation.

Characteristics:

Advantages:

Competitive (Hardball) Style

(1) aggressive and unfriendly
(2) confrontational
(3) intimidating
(4) Machiavellian
(5) negotiates by ultimatum
(6) makes few concessions
(1) pressures inexperienced adversaries into making
concessions
(2) hard-nosed approach may result in better settlements
for one's client
(3) establishes reputation for toughness that is attractive to
clients
(4)
may
produce one-sided agreements that
are
advantageous if performed

Disadvantages:

Characteristics:

(1) causes anger, alienation, and mistrust

(2) polarizes
positions
and
causes overreaction. or
irrationality
(3) impairs or destroys personal relationships
(4) damages future relations between the parties or
negotiators
(5) may induce the losing party to breach the agreement
(6) frequently causes deadlocks
Cooperative (Softball) Style
(1) friendly and mild mannered
(2) strives for common ground
(3) slow to anger
(4) communicates freely
(5) prone to make reasonable concessions
(6) readily considers alternative solutions

 8.12
Advantages:

SUMMARY OF STYLE AND STRATEGY

163
(1) reduces the risk of deadlock
(2) produces faster, more long-lasting, and
creative agreements
(3) maintains personal relationships
(4) preserves future relations between the
parties
(5) decisions are made without anger or
overreaction
(1) tends to make concessionstoo easily (2) may unnecessarily
result in a less favorable agreement for one's side
(3) conveys a weak negotiating image

Disadvantages: .
Competitive-Cooperative (Hardball and Softball) Style
Characteristics:
(1) friendly but firm
(2) open-minded and creative
(3) confrontational when necessary
(4) strives for common ground and mutually beneficial solutions
(5) makes necessary concessions
(6) communicates forthrightly
(7) analyzes alternative solutions
Advantages: (1) usually results in mutually beneficial solutions
(2) produces more long-lasting and
creative agreements
(3) maintains personal relationships
(4) preserves future relations between the parties .
(5) controls the competitive negotiator
(6) encourages concessionsfrom ,both sides
. Disadvantages:
(1) unworkable if the adversary is unrelentingly competitive
(2) difficult to. use when the parties
dislike or mistrust each other
(3) largely unworkable if the parties
refuse to cooperate
.
(4) sometimes sacrifices unilateral gains
for joint solutions
(5) requires tiine and patience
Adversarial Strategy
(1) most commonly used negotiation strategy
Characteristics:

164

NEGOTIATING MODELS, STRATEGIES AND STYLES

CR. 8

(2) emphasizes maximizing the party's gain (usually in terms of money)

(3) constitutes a zero-sum game (4) fact and law rationales are manipulated to advance
and defend
positions
.
(5) based on a strict cost-benefit analysis
Advantages:

Disadvantages:

Characteristics:

Advantages:

Disadvantages:

(1) effectivewhen the only

matter
obtainable is a single
objectivelike money . (2)
works
well when
the
parties dislike or
mistrust each other and are
not
interested
in
a
cooperative solution . (3)
negotiation process is less
complex
and
time
consuming
(1) creativity is curtailed in
arriving
at
mutually
beneficial solutions
(2) the final agreement
may not satisfy the parties'
true needs or interests
(3) parties and negotiators
sometimes
'remain dissatisfied and

resentful after
'agreement
Problem~SolvingStrategy
(1) the people are separated from the problem
(2) both parties' needs or interests are
identified and acknowledged
(3) information is freely exchanged (4) both parties
strive for mutually beneficial..solutions
(5) interests and objectives of both' parties
are accommodatedto the greatest extent possible
(1) usually results in greater satisfaction to both parties
(2) negotiations are markedly less intense and testy
.
(3) both parties' true needs or interests are often
fulfilled
(4) preserves personal relationships and
future relations between the parties and
negotiators
(1) usually unworkable when only one objectiveis
sought (e.g., money)

 8.12

SUMMARY OF STYLE AND STRATEGY

165

(2) unworkable if both parties are not committed to finding mutually beneficial solutions
'(3) negotiations are more complex and
time consuming
(4) sometimes unnecessarily sacrifices
unilateral gains for joint solutions